In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
The American Bar Association commissioned a four-year study in 2016 to examine why there are so few federal civil jury trials in the United States. According to its findings, “The percentage of federal lawsuits decided by jury trial dropped from 5.5 percent in 1962 to 0.8 percent in 2013. The percentage of federal criminal cases decided by jury trial dropped from 8.2 percent in 1962 to 3.6 percent by 2013.”
The reasons for the decline aren’t hard to discern: jury trials are less predictable, slower, and more expensive for civil litigants. While lawyers and judges say the benefits of jury trials outweigh their costs, they aren’t the ones spending the money to litigate their civil claims. No responsible attorney should ever promise a client that they will win at trial or recommend that a client not at least try to negotiate in good faith to reach a settlement short of trial. Yet there still must be a role for the jury in our legal system. There still must be a way for a litigant to get a jury of peers to render judgment in a dispute.
The framers of the Constitution understood this, or at least tried to. One of the least controversial components of the Bill of Rights is the Seventh Amendment’s guarantee of a right to a federal civil jury trial. To explore the Seventh Amendment a little more deeply, I reached out to Suja Thomas, a professor at the University of Illinois College of Law. Thomas has written extensively about the right to jury trials, chronicling the Seventh Amendment’s diminished role in ensuring that a community’s citizens, and not its judges, render judgment in civil cases. The interview has been edited for length and clarity.
COHEN: You’ve written quite extensively on the Seventh Amendment–protected right to a civil jury trial. I was struck by a law review article you wrote in 2016 in which you argued that “the jury is effectively a ‘branch’ of government — similar to the executive, the legislature, and the judiciary — that has not been recognized and protected” by legal elites and corporations. Tell me a little more about that theory and whether you think trends in jury trials over the past six years have supported your argument.
THOMAS: I first started thinking of the jury as effectively a branch of government when I witnessed a judge reduce a jury’s verdict of over $219,000 to $20,000. As a historical matter, a judge never had this power to reduce a jury’s verdict. Despite this fact, the Supreme Court has decided a judge can overrule a jury. I began to see a pattern in criminal and civil cases where, almost invariably, juries did not decide. Instead, a prosecutor, judge, or arbitrator made the decision on whether someone was guilty or liable.
For example, prosecutors and judges can penalize a person accused of a crime for not pleading guilty and insisting on a jury trial. This happened in Bordenkircher v. Hayes, in which the Supreme Court decided it was constitutional for the prosecutor to up the charges if Hayes declined to plead guilty and insisted on a jury trial. Hayes would have received five years if he pleaded guilty but received life in prison for insisting on a jury trial. Again, this was despite the historical fact that prosecutors and judges could not punish a defendant for not pleading guilty and taking the jury trial. The power of juries is similar to the executive, the legislature, and the judiciary. It is set forth in the text of the Constitution, giving certain authority to juries and other authority to bodies such as judges.
And the Founders talked about the jury’s importance in the same manner that they talked about the power of the branches of government. For example, Thomas Jefferson talked about the potential bias of judges versus the opinion of 12 people from the community, and Alexander Hamilton discussed the importance of the jury in criminal cases where judges could act in an unjust manner. The jury was intended to play a role to protect us in our democracy’s system of checks and balances. The importance of the jury as a branch and the usurping of its power continues to be important today. Juries decide few cases — less than 4 percent of criminal cases and less than 1 percent of civil cases.
COHEN: Before I returned to journalism three decades ago, I spent a few years as a civil litigator. At the time, we candidly told our clients, most of whom were small business owners, whether they were to be plaintiffs or defendants, that proceeding to trial was always a costly and often uncertain strategy. Since then, legal fees and other trial costs have skyrocketed, making it even less economically viable for many civil litigants to proceed to trial. If you were the nation’s jury trial czar and could do anything to ensure more jury trials, what would you change and why?
THOMAS: Wow, jury trial czar, I like the sound of that. Many civil cases that do not go to a jury trial should have the opportunity to be tried by a jury. There are far too many civil rights cases, including employment discrimination cases, being dismissed on summary judgment — a legal standard that allows a trial judge to dismiss a case before it is tried by a jury if the judge deems a reasonable jury could not find for one side. Dismissed cases include those with terrible, discriminatory facts, such as multiple breast-grabbing incidents and multiple racist comments. Additionally, forced arbitration in employment cases and consumer cases has greatly decreased the liability of companies for wrongdoing and has not permitted plaintiffs to have a jury of their peers decide. So, as czar, I would greatly limit summary judgment. It would be the exception and not the rule in civil rights cases. And I would eliminate forced arbitration in employment and consumer cases.
One might worry about costs. However, if we look at some statistics, in 2009, the Federal Judicial Center studied costs and fees in closed cases including discovery costs and attorneys’ fees. They found the median cost was $15,000 for plaintiffs and $20,000 for defendants. If we had more jury trials, there would be more costs for sure. But motions to dismiss for failure to state a claim and for summary judgment also add to costs. Doing less of those — particularly ones that have little chance of success — and doing more jury trials that are circumscribed can bring some cost control to litigation.
The late Steve Susman, who championed bringing back more civil jury trials and established the NYU Civil Jury Project, was a major proponent of shorter trials. He wrote and spoke about trial by agreement, including steps to streamline discovery and trial. Here are a couple of thoughts on what judges can do. Where they are not doing so already, judges should rein in lawyers who may over-try cases by limiting the number of days of trial. Judges can also discourage the presentation of duplicative evidence. For example, a regular practice includes reading admissions from depositions into evidence, but this evidence can be duplicative, and juries comprehend little of the importance of this material.
COHEN: The Seventh Amendment doesn’t apply to the states, but most state constitutions include their own provisions guaranteeing trial rights. Are there any outliers among the states when it comes to the right to a jury trial? Are some states more expansive in guaranteeing the right and others more restrictive?
THOMAS: Yes, some states have more limited civil jury rights. Three states — Louisiana, Colorado, and Wyoming — do not have a constitutional right to a civil jury trial. These states set forth that right in statutes or rules. In these circumstances, the right may be more easily limited, such as more restrictions on the types of cases a jury can decide and a higher threshold amount of damages for having a civil jury trial in the first instance. Significant caps on damages are also possible.
For example, in most circumstances, Colorado sets the cap at $250,000 for noneconomic damages or pain-and-suffering-type damages. Other states that have the constitutional right to a jury trial may also employ caps that may be challenged under their constitutions. For example, in Virginia, a medical malpractice cap of $2.55 million has been upheld. That might seem like a lot of money, but imagine the costs for the care of someone who is disabled as a result of malpractice. These costs might exceed this capped amount quite quickly.
COHEN: Are there any important Seventh Amendment cases now wending their way through the courts? Any Seventh Amendment disputes that have a chance of being reviewed by the Supreme Court? When you and your fellow Seventh Amendment experts gather to talk shop, what do you folks talk about? Is there an emerging trend or doctrine you want to highlight?
THOMAS: I hope two Seventh Amendment issues come before the Supreme Court in the next few years. One has to do with Securities and Exchange Commission proceedings, and the other has to do with incorporation. Some time ago in an opinion piece for the New York Times, Mark Cuban and I discussed a Seventh Amendment issue with the SEC taking away a defendant’s right to a jury trial. In these SEC proceedings, a defendant can be ordered to pay significant penalties to the government.
Jean Eaglesham of the Wall Street Journal showed that after the SEC lost before juries, the agency started bringing some of the cases before the SEC’s own judges. What do you know — the SEC won more often. This year, in Jarkesy v. SEC, the Fifth Circuit said there was a right to a jury trial in those cases. Now, in a case before the Supreme Court, Cuban and others have brought up this issue of SEC proceedings violating defendants’ right to a jury trial. While the Seventh Amendment issue is not before the Supreme Court, hopefully it will eventually reach the Court. SEC v. Gounaud, a case before the Ninth Circuit, shows additional Seventh Amendment problems. The judge took that case away from a jury by ordering summary judgment against the defendants and ordering a nearly $2 million judgment in favor of the government.
In addition, I hope the issue of the incorporation of the Seventh Amendment reaches the Supreme Court soon. The Seventh Amendment is one of the only amendments in the Bill of Rights that has not been incorporated or applied to the states despite historical support for doing so. In other words, currently, without incorporation of the Seventh Amendment, there is no right to a jury trial in civil cases in state courts unless individual states provide for it and no limitations under the federal Constitution. In a case called Winnett in the Western District of Texas, the incorporation issue is being considered in the context of a challenge to a Texas cap on noneconomic damages, and the matter has come up in some other states, such as Colorado.
COHEN: There has been significant turnover at the Supreme Court in the past five years. The three Trump nominees have shifted the Court even more to the right. What does the past jurisprudence of Justices Kavanaugh, Gorsuch, and Barrett — and, for that matter, Justice Ketanji Brown Jackson — suggest to you about the future of Seventh Amendment law? What do you expect this Court to say about jury trials?
THOMAS: Civil and criminal jury jurisprudence has at least theoretically been based on history. The Supreme Court has recognized that courts need to examine history to determine the scope of jury authority. Justices who have been characterized as more conservative have embraced history in some circumstances but not in others. The jurisprudence of Justices Kavanaugh and Gorsuch shows healthy regard for cherishing and protecting the authority of juries in criminal cases, and Justice Barrett has said she embraces Justice Scalia’s jurisprudence such that we should expect her to also protect the authority of juries in criminal cases.
Despite historical support for significant civil jury authority, I have concerns that Justices Kavanaugh, Gorsuch, and Barrett may not support civil juries in the way they may support criminal juries. There seems to be more affinity for protecting the authority of criminal juries that guard liberty than for preserving the power of civil juries in factually intensive cases against defendants who are companies and the government. Finally, Justice Jackson’s jurisprudence indicates she may issue opinions that support the authority of criminal and civil juries. With this said, the Supreme Court has issued surprising decisions, including Bell Atlantic v. Twombly and Scott v. Harris, where justices characterized as liberal have joined opinions that restricted the power of juries.
So, some so-called liberal and conservative justices have not upheld the historical power of the civil jury that the Constitution requires. I hope this can change as more attention is brought to these issues. I am working on a mainstream documentary to expose these problems.
This interview has been edited for length and clarity.
This discussion is one of several in a Brennan Center series on the Bill of Rights. The interviews with Darrell Miller about the Second Amendment is here, with Leonard Niehoff about the Third Amendment here, with Orin Kerr about the Fourth Amendment here, with David Carroll about the Sixth Amendment here, with Carol Steiker about the Eighth Amendment here, and with Jessica Bulman-Pozen about the Tenth Amendment here.