Football is dead and so are civil jury trials in the federal courts

I love football.  Living in Nebraska, how could I not.  I played the sport and so did my son.*  But, John Klass, in a beautifully written piece for the Chicago Tribune, tells us that football is as “dead as the Marlboro Man.”    Although I don’t like it, Klass is almost certainly correct.   The sport is being killed by soccer moms who sensibly prefer not have their male children undertake the significant risk of traumatic brain injury.

The death of football got me thinking about civil jury trials in the federal courts.  It used to be that we thought of civil jury trials, particularly in the federal courts, in iconic terms.  The absolute best lawyers asking citizen jurors to resolve significant disputes about important things.  No more.  You can check the statistics, but a civil jury trial in federal court is now a rare phenomena.  See WSJ Blogs, Why Have Federal Civil Jury Trials Basically Disappeared (September 21, 2010).

Why is this so?  Well, blame the soccer moms.   Thoughtful adults realize, correctly, that civil jury trials stink when it comes to resolving disputes in an efficient manner.  In the federal courts that is particularly true.  Among other things, our system encourages the expenditure of huge sums of money preparing a case for trial.  So, just as no soccer mom will allow her kid to strap on a helmet, no sensible person will throw away huge sums money for the opportunity to wager their fortunes before a federal jury when there are demonstrably better ways of resolving disputes.  Arbitration, mediation and rent-a-judge programs are much less costly and far more predictable.

While I lament the coming death of football, I am much less concerned with the death of civil jury trials in the federal courts.  Frankly, I was never much of a fan anyway.  In any event, the culture has shifted against civil jury trials (and the lawyers who try them) and there is nothing we can do about it.   While criminal jury trials will persist, the next generation of federal trials judges will look back at civil jury trials as a quaint but unbelievably expensive and inefficient anachronism.

That’s life in the Big Ten.


*Boyo’s high school team won the large-class state championship in Memorial Stadium (where the Huskers play).  Seeing his image on the big screen has been one of the highlights of my life.  Unfortunately, I think the kid got too many dings to the head.  He moved to Australia, got his PhD and became an academic.

5 responses

  1. Judge, why would a plaintiff want to be in federal court? The decline in civil trials in federal court has much more to with the interpretation of the law by the Circuit Courts and Supreme Court and the resulting increase in summary judgments granted by the district courts.

    In state court lawyers are allowed to practice law, we speak with judges and present arguments, as opposed to federal court where most cases are disposed of without ever being given an opportunity to practice the art of persuasion. It is a system which rewards those who can spends enormous amounts of time in front of a computer screen writing briefs. If you want trials, let the lawyers have oral argument on dispositive motions and let the plaintiffs keep the verdicts on appeal.

    Vince Powers

  2. Vince,

    Thanks for your comments. First, it isn’t a question of what I want or don’t want. The federal system is much as you describe, but that isn’t the “fault” of district judges. We do what the Courts of Appeal and the Supreme Court direct. Second, you may be correct that great bulk of civil litigation has migrated or will migrate to the state courts. If that is so, I don’t think that is a bad thing. The federal courts were never intended to be courts of general jurisdiction but that was exactly the intended role of the state courts. Finally, (and here is where you and I are likely to disagree the most), I have never believed that litigation was a particularly good way to regulate businesses. So, if the Supreme Court is pro-business, as the NYT article suggests, that strikes me as a good rather than bad thing.

    Anyway, I sincerely appreciate your thoughts. You have a long and distinguished career as a trial lawyer, and I honor your service.


  3. Dear Vince,

    I just got a copy of Arthur R. Miller’s Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 New York University Law Review 286 (2013). If you haven’t read it, you should. You will agree with a lot of what Professor Miller has to say.


    PS. Professor Miller is, as you know, the most experienced legal academic in the world when it comes to American federal civil procedure.

  4. Pingback: Thinking about federal civil practice while preparing for Vince « Hercules and the umpire.

  5. Pingback: The Supreme Court’s alleged pro-business stance and Kopf’s analytical skills test « Hercules and the umpire.

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