The Right to a Jury Trial is Under Attack

by Eric Pearson

According to a June 22, 2013 article in the Dallas Morning News, the number of annual civil jury trials in Texas has plummeted to a new 40-year low. In 2012, there were fewer than 1,200 civil jury trials in state district courts in Texas. That’s a 64 percent decline from 1997, when there were 3,369 jury trials. Federal courts in Texas have seen an equally significant decline, from 360 civil jury trials in 2997 to only 135 in 2012.

Texas juries decided 12 percent fewer personal injury and medical malpractice cases, 15 percent fewer business disputes and 50 percent fewer product liability cases in 2012 compared with 2011. Statistics show that juries in 2012 sat in judgment of 88 percent fewer product liability claims — including cases of faulty medical devices, dangerous prescription drugs, defective tires and accident-prone cars — than they did in 1996.

The statistics in Texas mirror national trends. A 2010 study showed that the number of civil jury trials in federal court declines from a total of over 10,000 in 1989 to around 6000 in 1999 and around 3000 in 2009. Particularly hard hit have been personal injury claims, which declined from about 4500 in 1985 to barely 750 by 2005.

Legal experts agree that the dramatic drop in jury trials does not mean that we have become a less litigious society. Rather, the statistics reflect the fact that tort reform and recent court decisions have combined to severely limit the number and types of cases. For example, as a result of tort reform laws that limit non-economic damages in medical malpractice cases in Texas to $250,000, far fewer such cases are brought to trial now than in years past. More recently, the U.S. Supreme Court held that form contracts such as product warranties that contain arbitration clauses and class action waivers are enforceable against consumers. As a result, most consumers who suffer minor economic damages due to a company’s misconduct are denied any reedy at all since their economic damages are too low to make a lawsuit feasible, and they are barred from joining in a class action lawsuit with other aggrieved consumers.

Other injured persons are simply deterred from bringing suit by an appellate court system that is seen as hostile to the rights of injured persons. In Texas, for example, a 2011 study revealed that more than one-third of all jury verdicts are overturned by appellate courts in Texas. The same study showed that a verdict in favor of a plaintiff is twice as likely to be overturned on appeal than a verdict in favor of a defendant (49% versus 25%). When the focus is narrowed to consumer fraud and personal injury cases, the picture is even bleaker: approximately 50% of such verdicts in favor of plaintiffs that are appealed are reversed while only 11% of pro-defense verdicts are reversed. Whether because of overly conservative appellate courts, tort reform or other legislation, the civil jury trial is under attack.

Thomas Jefferson once said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Someone needs to remind our current politicians and judges of this fact before it is too late.