How Judges Can Further the Value of the Civil Jury Trial

From: Civil Jury Project at NYU

By: Stephen D. Susman

The following article is by Stephen D. Susman, Executive Director of Civil Jury Project at NYU.

  1. Six years ago, when I turned 70, I began thinking that I might end my career as a trial lawyer by teaching trial advocacy at some law school. But I came to the quick conclusion that teaching dinosaur hunting was not the best use of my remaining years.  So I became involved as co-chair of the American Board of Trial Advocates Save Our Juries Committee.  It took me a few years to realize that bar organizations were not the way to have an impact on keeping jury trials viable:  trial lawyers were gung-ho to work on non-billable projects only twice a year at conventions.  Besides, they were too self-interested, too divided by loyalty to clients who wanted to go to trial and those who didn’t, too conservative to try new things, and too busy between conventions, to get anything done.  So I came up with the idea of establishing an academic center at a law school that put together an alliance among academics, jurists and trial consultants to try to prevent the disappearance of jury trials.  And I agreed to serve as an adjunct faculty member and the executive director on a pro bono basis.
  2. The CJP was established at NYU School of Law in the fall of 2015 as the only academic center in the nation studying why jury trials are disappearing, whether we should care and if so, what can be done about it.
    1. The CJP now has almost 250 Judicial Advisors (proving that most trial judges still want to try cases), and 9 of whom are on your court (proving that you are one of the benches most interested in trying cases). We also have 65 Academic Advisors and 35 Jury Consultant Advisors.
    2. By teaching a course on How to Try a Jury Trial Intelligently, I had occasion to study the historical and empirical research attempting to identiy the causes of the decline. I quickly came to the conclusion that the main reason was that large businesses, in the early 80s, wanted to get rid of jury trials and that they had succeeded in doing so by getting law-makers and judges to reduce the number of causes of action and the number of trials.  Reversing this intentional reduction is beyond what an academic center can hope to accomplish, but we can pursue a more modest goal of getting the most out of what’s left, and we can prevent jury trials from disappearing altogether simply because neither judges nor litigators are comfortable with conducting them.
    3. I have also concluded that federal judges are the single most likely group able to accomplish this.
      1. First, though most jury trials are conducted in state courts, federal judges have typically been thought-leaders in judicial reform.
      2. Second, none of the reforms we suggest for improving civil jury trials are prohibited by federal law or federal rules.
      3. Third, and most importantly, federal judges are not beholden to anyone for keeping their jobs—they do not have to worry about what the lawyers or litigants want or expect

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