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.