Two federal judges have reportedly provided differing views on why the percentage of federal civil cases tried before a jury has dropped from 11.5 percent in 1962 to 1.2 percent in 2009. Participating in a recent Federal Bar Association program titled “The Future of the Civil Jury Trial in Federal Court,” Judge William Young of the District of Massachusetts claimed that federal judges are partly responsible while Judge D. Brock Hornby of the District of Maine attributed the decline to external factors.  

Young was quoted as saying that he advocated court system changes to encourage judges to spend more time on the bench by (i) “setting firm trial dates,” (ii) “rejecting requests for continuances,” (iii) “publishing judges’ time on the bench by district,” and (iv) “getting judges to conduct trials or hearings for other judges in busier districts.” “We should manage our cases to get them to trial,” he said.  

Hornby’s assessment, which focused on changes in lawyers’ and clients’ attitudes, included the following reasons for the declining civil trial numbers: (i) “lawyers have learned to measure which cases will be profitable”; (ii) “clients are far more sophisticated about how they use lawyers”; (iii) “companies are more skilled in risk management, including litigation, than they were many years ago”; (iv) “many causes of action and the bases for liability have matured, so litigants can more easily settle sexual harassment or asbestos cases, for example”; (v) “Congress hasn’t recently passed new laws creating liability for actions, such as the Americans with Disabilities Act of 1990”; (vi) “more lawyers and law firms use alternative dispute resolution and more contracts contain clauses requiring it”; (vii) “lawsuits are extremely expensive, partially due to electronic discovery”; (viii) “news and entertainment portray juries as irrational, unpredictable and out of control”; and (ix) “disputes are increasingly international and more amenable to international arbitration.”  

Hornby asserted that judges ultimately need to respond to societal and legal forces regarding use of the court system. “Disputes come to us,” he said. “We are there to respond. We have to serve litigants and their lawyers in a way that meets their needs. As federal judges, we don’t have a roving mandate to go out and bring cases in and compel people to go to trial.” See The National Law Journal, September 20, 2010.