A trend has been solidly underway for the past three decades ... and that trend is that there are fewer civil jury trials. A lot fewer. Mind you, the right to a jury trial in a criminal case is enshrined in our U.S. Constitution. But the civil jury has always been a somewhat different creature. It appears that this creature is not as appreciated by corporate interests, assorted bureacracies, and those with a mind for certainty over process in a messy civil society. I understand ... but at what cost? 

The decline in civil jury trials has been precipitous. Since the 1990s when I began practicing in Texas, civil jury trials have declined by roughly two-thirds. In the mid-90s, Texas state courts conducted about 3,300 jury trials; by contrast, today there are between 1,100-1,200 per year. That is a sea change. So, what happened? 

A confluence of mandatory mediations in virtually every case, the ever-increasing cost of legal services, and the rise of arbitration (inserted into many agreements such as home purchases, leases, employment, and consumer contracts) all have worked to dramatically reduce the number of jury trials in state courts. My view is that encouraging an early mediation is a good thing indeed, as this often heads off disputes and saves the parties untold thousands in legal costs. The rise of arbitration is another story; this contractual vehicle to avoid lawsuits -- without any real right to appeal is inherently skewed, even if unwittingly, toward the businesses that advocate for and have established such forums.

In seeking solutions, it is always best to remember the alternatives. Those that fear the jury trial and champion its demise point to its excesses, and certainly there are those. However, the alternative to a jury trial is a system where lawyers decide cases. That is right. Judges who preside over non-jury trials are lawyers; arbitrators are almost always lawyers. So, would you rather have one lawyer decide your case, or 12 people -- a cross-section of your community? My experience is that jurors, while imperfect, have more common sense than lawyers and, on average and over the long haul, make better decisions than a solitary purported "expert" decision-maker. It's the magic of the common law jury system, embodied in our constitutional republic.

So, what about the client who believes he may end up in a jury trial these days? Experience in front of jurors is at a premium, and, as noted, it is declining. So, ask your lawyer about trial experience. Experience isn't everything, but it is certainly something. Even if your case ultimately settles (and more than 95% of them do), having an experienced counsel on your case -- one that the other side knows could try your case effectively -- helps get cases resolved. 

The have peace, you must prepare for battle. To properly prepare for battle, you need a real trial lawyer. A real trial lawyer has almost always successfully done it before.