Thursday, January 7, 2010

Vanishing Jury Trials

The decline in trials in the trial courts of America has been called “the most profound change in our jurisprudence in the history of the Republic.” As summarized in 2005 by Supreme Court of Texas Justice Nathan Hecht [The Vanishing Jury Trial: Trends in Texas Courts and an Uncertain Future, 47 S.Texas Law Review 2005], the annual number of jury trials in federal civil cases declined by 52%, 1985-2002, and in Texas civil cases declined by 49%, 1986-2004. As reported in a widely cited 2004 article by Marc Galanter [The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J.Empirical Legal Stud. 459 (2004.]:

"The data provide a picture of trends in the state courts that overall bear an unmistakable resemblance to the trends in federal courts we have been examining. The portion of cases reaching jury trial declined from 1.8 percent to 0.6 percent of dispositions and bench trials fell from 34.3 percent to 15.2 percent. The absolute number of jury trials is down by one-third and the absolute number of bench trials is down 6.6 percent."

The Office of Court Administration recently updated Justice Hecht’s data, which ended in 2004, to see how the trends look in Texas. First a note on methodology: OCA reports contain data for the “criminal docket,” “civil docket,” and “juvenile docket.” Since 1986, family law cases have comprised about half of the civil docket. Family law cases (Reciprocals, Divorce, and All other Family Law Matters) are excluded from this analysis, as they were excluded from Justice Hecht’s. He reasoned that the rights to a jury trial and to a binding verdict are limited in family law cases, and jury trials are therefore much less frequent than in other civil cases; and, such cases cannot be brought in federal court, and an important purpose of Judge Hecht’s original article was to compare the situations in the Texas and federal systems. For simplicity, “civil” in this analysis should be read to mean “non-family civil.”

First, all dispositions of civil cases overall declined from 1986 to 1995 and then steadily increased until 2008, with a slight decline in 2009; the net of these two trends over 20 years was a 1.3 increase. Over just the past decade, civil case dispositions show a 29.6 percent increase. Annual dispositions in criminal cases rose 16.2 percent from 1999 to 2009 and 39.3 percent from 1989 to 2009. Criminal cases show a steady increase from 1986 to 2007 and then a slight drop from 937,722 to 891,290 in 2009.

Civil and criminal jury trials dropped during the 20 year period, both absolutely and as a rate of dispositions. The absolute number of jury trials, civil and criminal, in district and county court at law, dropped 20.4 percent. Criminal jury trials dropped 7.2 percent, and civil jury trials led the decline with a 43 percent decrease. The minimum occurred in 2006 when 1,708 trials occurred. The number climbed to 1,991 in 2009, which does not begin to approach the 3,492 jury verdicts from 1989. The decline in civil jury trials in Texas courts continues to follow the trends noted by Judge Hecht in 2004; interestingly, at the time of his article, criminal jury trials had increased by 20% from 1986 to 2004, but that has now reversed as noted above.

Trials as a percentage of dispositions, the “rate of disposition,” dropped an overall 41.7 percent. The difference between civil and criminal trials was less pronounced in this category. The rate of disposition for criminal cases dropped 33.4 percent from 1.05 percent of dispositions in 1989 to .7 percent of dispositions in 2009. This category has a smooth drop with the rate in 1989 as the maximum and the rate in 2009 as the minimum. The civil disposition rate dropped 43.7 percent, but the drop is more erratic. In 1989 the rate was 1.07 percent of dispositions, which fell to .6 percent of dispositions in 2009. The maximum occurred in 1992 with 1.2 percent, and the minimum of .5 percent occurred in both 2007 and 2008.

Thanks to OCA research specialist Jessica Tyler for her help with this data set.


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