24 February 2006

What Kinds Of Cases Go To Civil Jury Trials?

The Facts

A national sample of civil jury trials breaks down the cases by type. About 78% of civil jury trials are in "tort" cases, most of which involve physical injuries, shown below by type of case (with a percent of the total number of all civil jury trials in that kind of case):

Automobile Accidents 31.98%
Dangerous Premises 16.10% (e.g. slip and fall cases)
Medical Malpractice 11.39%
Intentional Torts 3.64% (e.g. civil damages for assault)
Product Liability 3.06%
Toxic Substances 2.08%
Professional Malpractice 1.52% (other than medical)
Slander and Libel 0.54%
Other Tort or Unknown 7.68%

Civil jury trials making up 19.2% of the total number involve people in contractual relationships with each other. About 10.41% of the total number of civil jury trials involve suits between buyers and sellers, about 2.83% involve employment cases, about 2.68% of the total number of civil jury trials involve fraud, about 1.21% involve leases, about 0.06% involve mortgages, and about 2.04% involve other kinds of contract cases.

About 2.4% of jury trials are in real estate cases, three-quarters of which are suits to determine the fair market value of property seized by eminent domain by a government agency (about half of the rest concern disputes over who owns real estate). About 0.38% were incapable of being classified.

If Colorado is typical of the national pattern (I suspect it isn't that far from the national average) this means that 83% of jury trials are criminal (we know this), 13% of jury trials are in tort cases (about 260), and 4% of jury trials are in other kinds of civil cases (about 83 per year).

So, how often do different kinds of cases go to juries:

* Civil Tort in General Jurisdiction Court 423 per 10,000 cases (based on 6,142 such cases per year and 78% of 334 civil jury trials).
* Felony 150 per 10,000 cases
* Misdemeanor 80 per 10,000 cases
* Traffic 20 per 10,000 cases
* Non-Tort Civil Cases in General Jurisdiction Court 17 per 10,000 cases (excluding domestic, juvenile, mental health and probate cases).
* Civil Cases in Limited Jurisdiction Court 1 per 10,000 cases

The jury trial rate in felony cases also is likely quite different between more serious cases (where the jury trial rate is likely to be higher) and less serious ones (where the jury trial rate is likely to be lower).


The jury system works pretty well in criminal cases (and quasi-criminal parental rights termination cases), where it provides a check against prosecutorial excess, and in personal injury cases, where it provides a workable way to determine issues such as a fair value for the pain and suffering experienced in an accident. Both typically involve isolated incidents where there the events are physical, rather than happening primarily on paper. Physical injury torts also rarely involve counterclaims against the plaintiff, making them relatively straightforward. And, physical injury torts very frequently involve disputed issues of fact regarding both liability and damages which can only be resolved by a jury, so deferring all decisions in these cases until a trial in those cases makes a great deal of sense.

The role of a jury in eminent domain cases, where it insulates individuals from government power in making a determination about the intangible issue of fair market value, is also a narrow, but useful situation in which to have a jury trial. Here, the jury trial is always a trial on damages only.

But, there is a heavy price to be paid for the right to a jury trial in other kinds of cases. They are very rare, and they make it impossible, for example, to resolve a single key factual issue that could resolve a case, like whether or not a contract was formed, prior to trial on every issue in the case that will be the final and only say in the action, even though if there is a trial it will be before a judge, rather than a jury. In contrast, something more like the civil law system, where cases are resolved in a series of hearings before a judge in a less formal setting on a small number of issues at a time, could resolve cases with reference to the facts, considerably more efficiently by the same decision maker you would have at trial.

The procedural complexity and administrative issues involved in a jury trial right in limited jurisdiction civil cases is even greater, as 99.99% of them don't end up going to jury trials, and the amount in controversy is generally small in comparison to the governmental and party costs of conducting them (including hidden costs like the need to have court rooms with jury boxes even in courts reserved for civil matters that almost never use them).

There is neither a federal, nor in Colorado, at least, a state constitutional right to a jury trial in civil cases. Indeed, there isn't even a statutory right in the state of Colorado to a trial by jury in a civil case. Jury trials in civil cases exist by virtue of court rules only, and could be abolished in whole or in part by the Colorado Supreme Court at any time. In practice, under this rule, Colorado follows the elaborate 7th Amendment jurisprudence developed in the federal courts, involving long since abolished distinctions between claims that are tried in courts sitting in equity and courts sitting in law in the late 18th century.

We should seriously consider replacing the existing jury trial right with one that allowed a civil jury trial only in general jurisdiction court cases alleging physical injury to a person (or death) or defamation (due to the difficulty of calculating damages), and in cases where the suit is brought by the government against an individual in a uniquely governmental capacity (e.g. eminent domain, termination of parental rights, or quasi-criminal civil cases such as traffic and ordinance violations). If there was a strong political impulse in support of it, fraud cases might be added to the realm of jury trials, on the theory that juries are good judges of witness credibility. These cases would be tried in a manner similar to under our existing rules.

But, we should abolish the jury trial right in civil cases brought in limited jurisdiction courts, and in all other cases in general jurisdiction courts, and then should radically overhaul the rules of civil procedure in such cases in a manner that reflects the fact that the judge will be the ultimate trier of all issues of fact and law in the case.

The vast majority of cases where the jury trial right is important would be preserved, but the bright line rule would greatly simplify the legal doctrine that goes into a determination of that right, and the procedural benefits in the vast majority of civil cases (mostly commercial cases) which have no realistic change of doing to a jury trial could be significant.

For example, rather than having discovery (which accounts for up to 90% of the cost of litigation) before trial, the parties could have a preliminary hearing, similar to that found in a criminal case, and the judge could make findings of fact based on that hearing, and then, discovery could be allowed only on the issues where the judge finds that further evidence would be necessary or helpful or might reveal facts not available to the parties based on arguments made by the parties at the preliminary hearing.

If, for example, a judge in a breach of contract case, found at a preliminary hearing that the existence and terms of the contract were clear, despite a non-frivilous argument of one of the parties that the contract was not valid, and also finds that it was clear that the contract was breached, discovery after the hearing and prior to a final hearing in the case might be limited to damages issues. And, the issues decided at the preliminary hearing would not have to be retried again at a final hearing in the absence of newly discovered evidence on a particular point. The active case management urged by a plethora of judicial rule reformers over the years, which has never caught on due to the constraints imposed by a jury trial oriented set of procedural rules, might finally become an organic part of the process (in much the same way that almost every divorce has both a temporary orders and a permanent orders hearing).

Likewise, evidence rules could be relaxed in this class of cases, and a judge could simply tell the parties if he does or does not find hearsay sufficiently reliable for him to make a decision upon in a particular instance, or if he finds a matter to be relevant. Encouraging more questions and answers between judges and parties in these kinds of cases would make processing them much more efficient, because the parties wouldn't feel compelled to offer excessive evidence on an issue the judge has already mentally determined that the evidence already offered resolves.

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