In my 30-plus years as a trial lawyer, I have had roughly 35 jury trials. And a little over half of them were in the first 10 to 12 years of my career. As time has gone on, I have noticed fewer and fewer jury trial opportunities for me and the other litigators at my firm. This has caused some of us to complain that jury trials are “vanishing,” and half-heartedly speculate that they may someday become a “myth.”

Recent survey data from the National Center for State Courts (NCSC) confirm that my and my colleagues' collective experiences are true across the country, at least in the state court system. In 2007, the first year NCSC performed its survey, state courts conducted about 148,558 jury trials annually. In 2019, the number was 125,222. In 2021, the number was down to 48,764 – a roughly two-thirds drop in 14 years. And while some of the 2021 number can be attributed to the pandemic, an analysis of the year-over-year data confirmed that even before COVID-19, jury trials were in steady decline. Indeed, the 2021 number actually reflects an increase in such trials from 2020, when the pandemic's impact was most significant.

There are, of course, a myriad of reasons for this phenomenon. The rise in Alternative Dispute Resolution procedures, particularly mediation, has certainly resulted in more cases settling before trial. The cost to take a case to trial has also gone up exponentially; due in part to the advent of the internet and electronic documents and discovery. Gone are the days when I could fit an entire case file in a single accordion folder, walk into a courtroom, and try my case. And when businesses see some of the “nuclear verdicts” juries are awarding, they have understandably become more reluctant to take their chances at trial, even in jurisdictions that historically have been considered business friendly. So, I see the “vanishing jury trial” trend continuing.

I will leave it to others to comment on whether this is a generally good or bad phenomenon for society. What I will say is that from a litigator training perspective, it is not a good thing. Some of the best lessons of my professional and personal life were learned in the courtroom trying cases to a jury. Because those opportunities are becoming fewer, I worry that those experiences will not be available to the next generation of trial lawyers.