Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges

AuthorShari Seidman Diamond - Jessica M. Salerno
PositionHoward Trienens Professor of Law and Professor of Psychology, Northwestern University Pritzker School of Law, and Research Professor, American Bar Foundation - Associate Professor of Psychology, Arizona State University.
Pages122-167
Louisiana Law Review Louisiana Law Review
Volume 81
Number 1
Fall 2020
Article 9
12-11-2020
Reasons for the Disappearing Jury Trial: Perspectives from Reasons for the Disappearing Jury Trial: Perspectives from
Attorneys and Judges Attorneys and Judges
Shari Seidman Diamond
Jessica M. Salerno
Follow this and additional works at: https://digitalcommons.law.lsu.edu/lalrev
Repository Citation Repository Citation
Shari Seidman Diamond and Jessica M. Salerno,
Reasons for the Disappearing Jury Trial: Perspectives
from Attorneys and Judges
, 81 La. L. Rev. (2020)
Available at: https://digitalcommons.law.lsu.edu/lalrev/vol81/iss1/9
This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital
Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital
Commons. For more information, please contact kreed25@lsu.edu.
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Reasons for the Disappearing Jury Trial:
Perspectives from Attorneys and Judges
Shari Seidman Diamond & Jessica M. Salerno*
TABLE OF CONTENTS
Introduction.................................................................................. 120
I. The Disappearing Jury Trial and Potential Reasons
for the Decline.............................................................................. 122
II. Survey Methodology and Sample Characteristics........................ 127
III. Why Cases Do Not Go to Trial: Attorney Abilities and
Litigant Preferences...................................................................... 128
A. Judges................................................................................ 128
B. Attorneys ............................................................................... 129
IV. Perceptions of Case Resolution Procedures ................................. 131
A. Civil Attorneys’ and Judges’ Rankings of
Case Resolution Procedures .................................................. 131
B. Ranking of Predictability, Speed, Cost Effectiveness,
and Fairness as Predictors of Overall Preference .................. 139
C. Criminal Attorneys’ and Judges’ Rankings of Case
Resolution Procedures ........................................................... 140
D. Ranking of Predictability, Speed, Cost Effectiveness,
and Fairness as Predictors of Overall Preference .................. 142
Copyright 2020, by SHARI SEIDMAN DIAMOND and JESSICA M. SALERNO.
* Shari Seidman Diamond, Howard Trienens Professor of Law and
Professor of Psychology, Northwestern University Pritzker School of Law, and
Research Professor, American Bar Foundation; Jessica M. Salerno, Associate
Professor of Psychology, Arizona State University. We are indebted to the
members of the ABA American Jury Commission, ABOTA, Steve Susman, Beth
Murphy, Paula Hannaford-Agor, Nicole Waters, Greg Mize, Tom Munsterman,
Mary Rose, Zach Zarnow, and Raff Donelson who all contributed advice and
insights on this project. We are particularly grateful to Stephanie McCoy
Loquvam, who was a tireless advocate in stimulating survey participation. The
opinions and any errors are ours alone. We welcomed the invitation to present the
results of this survey at the 2020 symposium of the Louisiana Law Review and
Pugh Institute for Justice entitled “We the Jury: Conversations on the American
Jury’s Past, Present, and Future,” and we appreciate the editorial input we
received on the resulting Article.
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120 LOUISIANA LAW REVIEW [Vol. 81
V. System Effects as Sources of the Reduction
in Jury Trial Rates ........................................................................ 143
A. System Effects as Sources of the Reduction
in Civil Jury Trial Rates......................................................... 143
B. System Effects as Sources of the Reduction
in Criminal Jury Trial Rates .................................................. 146
VI. Pressures on Parties to Settle or Plead Guilty .............................. 149
A. Pressures on Civil Litigants to Settle..................................... 149
B. Who Pressures Civil Plaintiffs to Settle?............................... 151
C. Who Pressures Civil Defendants to Settle? ........................... 153
D. Pressure on Criminal Defendants to Plead Guilty ................. 155
E. Who Pressures Criminal Defendants to Plead Guilty? .......... 156
VII. Are Jury Trials Worth Saving?
(and if so, What Needs to Be Done?)........................................... 159
Conclusion.................................................................................... 162
INTRODUCTION
All court observers agree that the modern era has brought a dramatic
decline in jury trials, both civil and criminal.1 The explanations for that
decline are far more ambiguous, in part because commentators offer so
many possible explanations. To evaluate these sources of decline and to
assess what changes might slow down or reverse the disappearance of the
American jury trial, we conducted a national survey of attorneys and
judges.2 The survey was designed to investigate how legal professionals
who have firsthand experience with the decisions that lead to or away from
1. Marc Galanter, The Vanishing Trial: An Examination of Trials and
Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEG. STUD. 459
(2004); SUJA A. THOMAS, THE MISS ING AMER ICAN JURY: RESTORING THE
FUNDAMENTAL CONSTITUTIONAL ROLE OF THE CRIMINAL, CIVIL, AND GRAND
JURIES (2016).
2. This Article reports on results from a survey conducted by the authors at
the request of the ABA Commission on the American Jury. The materials
contained herein, including the analysis of the results, represent the views of the
authors and should not be construed as the views of the American Bar Association
or the ABA Commission on the American Jury. Further, nothing con tained herein
is to be considered as the rendering of legal advice, and readers are responsible
for obtaining such advice from their own legal counsel.

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