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DTCI: Where have all the jury trials gone?

December 30, 2015

voelker-louis-dtciI do not purport to present a scholarly article on jury trials, so it is unnecessary to explore the history of the concept of juries or of the implications of the Magna Carta to the right of trial by jury. I will not explore the details of how the right to trial by jury followed English settlers to the Colony of Virginia and to the Massachusetts Bay Colony in the early 1600s. Suffice it to say that our Declaration of Independence included among its list of grievances the deprivation – in some instances – of the right to trial by jury. After some political maneuvering, which existed even at the birth of our nation, the right to trial by jury in civil cases was excluded from the body of the United States Constitution, and ensconced instead in the Seventh Amendment, as part of the Bill of Rights: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ... .” The states have likewise, in their own diverse manners, protected the rights of their citizenry to trial by jury. In Indiana, the protection is clear, concise and unequivocal. Article I, Section 20 of the Indiana Constitution provides: “In all civil cases, the right of trial by jury shall remain inviolate.”

Conceptually, attorneys (and especially perhaps members of organizations like DTCI and ITLA) embrace as inviolate the right to trial by jury. We cite the concept both as a goal and as the bedrock of our existence – and sometimes in responses opposing summary judgment motions. But the Indiana Supreme Court “2014 Indiana Judicial Service Report, Vol I: Judicial Year in Review” caused me to look more closely at how that right is being exercised as a practical matter. For those of you who have not already done so, I encourage you to review the report. (It can be found through courts.IN.gov or at http://www.in.gov/judiciary/admin/2467.htm). It includes statistics regarding court filings and dispositions during the year. The overall statistics are detailed, and a year-to-year analysis would be far more complex than space here allows, but even some basic comparisons are enlightening.

In 2014, there were 470,027 new civil cases (of all types) filed in Indiana trial courts. Of those, 11,417 were civil tort cases, which reflected a 16 percent decrease in civil tort filings compared to 2005 (13,588 civil tort filings). While this was of interest, it was not necessarily surprising. Conversely, I found the statistics on the statewide disposition of cases to be startling. In 2014, only 245 civil cases were resolved by way of jury trial, of which 209 jury trials were civil tort cases. By comparison, the 2005 Indiana Judicial Services Report (which can likewise be accessed through courts.IN.gov) indicates that in that year, 605 civil cases were tried to jury in the state, of which 486 were civil tort claims. That only 605 civil cases were tried to a jury in 2005 is notable; that a mere 10 years later we would be down to about 40 percent of that number is remarkable.

By now, no doubt, our mediator friends are cheering. I don’t know whether they deserve all the credit for this, but they may have earned at least some of it. It would probably be viewed as selfish of me to contend this trend is a negative one, but I do think it should give us pause. The right to a trial by jury should not be merely conceptual. It is real, and sometimes it is not just an unavoidable outcome, but a desirable one.

Trials let lawyers on both sides of the bar know what our communities consider to be reasonable or unreasonable conduct. Without them, that connection can be lost. Trials produce the statistics from which we try to extrapolate the value of cases we seek to settle fairly. Without them, that source of information declines. Trials are the training ground in which this generation of leading trial lawyers prepares the next. Without them, who will stand ready to try the jury trials of the future (if any there be)? I haven’t met a trial attorney yet who didn’t feel a little rusty going into the courtroom when they hadn’t tried a case for some time. It is clear that our young lawyers aren’t getting even the limited number of opportunities we had but a decade ago. For that matter, with 452 judges in the courts of Indiana’s 92 counties, how much opportunity do they have to oversee civil jury trials? How effectively can the right to trial be exercised when there is no one left with experience doing the work?•

Louis W. Voelker III is a partner at Eichhorn & Eichhorn LLP in its Hammond office and is a member of the board of directors of DTCI. The opinions expressed in this article are those of the author.

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