1. Vanishing Civil Jury Trial Judge Xavier Rodriguez 1

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6. Proportion of cases tried to jury trial 6

7. Percentage of civil trials to jury trial 1.2% 7

8. What are we to do with these statistics? Panic Ignore Celebrate 8

9. De Tocqueville 9

10. Juries “gratuitous public school ever open, in which every juror learns to exercise his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws of his country, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even by the passions of the parties.” 10

11. Juries “I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide the litigation; and I look upon it as one of the most efficacious means for the education of the people which society can employ.” 11

12. what type of cases were being tried in the 1960s when the jury trial percentage was between 10% -11%? What types of cases are being tried today? 12

13. Jury Trials as a percentage of total dispositions by type of case 19622002 Torts 11.6%1.6% Torts, diversity14.8%2.3% Contracts2.0%1.0% Contracts, diversity 6.2%1.5% Prisoner 0.0%0.5% Civil rights3.5%3.0% Labor 1.3%0.4% I.P. 0.4%2.4% 13

14. Potential Contributing Factors to the Decline of Jury Trials  Tort reform and caps on compensatory and punitive damages  (Likelihood of establishing liability x probable damages) – expenses not recoverable = monetary value of case  Jury nullification  In a criminal case, future Justice Hugo Black represented a Klan member accused of killing a Catholic priest, who had married the Defendant’s daughter to a Puerto Rican. Quoting from a Klan prayer, Black asked the jury to absolve the defendant by reason of insanity. “In an act of irreversible nullification, [the jury] substituted its own verdict of not guilty by reason of self-defense.” 14

15. Potential Contributing Factors to the Decline of Jury Trials  Judges as Case Managers  Trial by paper  Motions to dismiss (Twombly/Iqbal)  Motions for summary judgment  Daubert motions to exclude experts 15

16. Potential Contributing Factors to the Decline of Jury Trials  Reversal rate on appeals  Lynne Liberato & Kent Rutter, Reasons for Reversal in the Texas Courts  34% of jury verdicts reversed  Kevin Clermont, Employment Discrimination Plaintiffs in Federal Court  41% of Plaintiff verdicts reversed 16

17. Potential Contributing Factors to the Decline of Jury Trials  Mediation 17

18. Potential Contributing Factors to the Decline of Jury Trials  Jury Waivers  Arbitration  By the way, early forms of arbitration existed during Stephen F. Austin’s colony. See Michael Ariens, Lone Star Law  Discovery Costs  proportionality  Corporate Counsel, Corporate representatives and Financial Incentives  Hourly rates and staffing 18

19. Potential Remedies  Timeliness  Discovery  Duty to Preserve  Proportionality  Privilege Review  Modification of Fed. R. Civ. P. 12(b)(6)  Arbitration  Early Merits Evaluation  J. Maria Glover, The Federal Rules of Civil Settlement 19

20. What does this trend mean for law schools? Legal Research and Writing Mediation and Negotiation skills Discovery and E-Discovery skills Law Practice Management Trial Advocacy and Evidence classes 20