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Tuesday, December 18, 2012

Ind. Courts - "The Disappearing Jury Trial in Indiana: Some Thoughts (and Stats) on the Past Five Years"

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Last year in courts across the state, less than 1,300 cases were resolved by jury trials. Although the numbers were down for both civil and criminal cases; the civil numbers seem especially low at 271.*

Why the Decline—and Does it Matter?

Applicants this summer for the vacancy created by Justice Sullivan’s retirement were asked a number of questions about their jury trial experience and their views on the jury system. The standard application form asks applications to “[d]escribe the extent of [their] jury experience, if any.” This question appears rooted in the statutory criteria that require the Commission consider an applicant’s “type of legal practice, including experience and reputation as a trial lawyer or trial judge.” No one was asked directly why there are so few jury trials or if the paucity was a positive or negative thing.

The reasons for the decline in the civil realm are ably explored many places, including a 2004 empirical article about the “vanishing trial” by the Litigation Section of the ABA and a 2012 essay by U.S. District Judge James E. Gritzner. These include the rise of alternative dispute resolution, the cost of trials as cases become more complex and require more expensive experts, and “judge hostility to trials.”

The increasing number of cases resolved by summary judgment mentioned in some states would appear less applicable in Indiana. As summarized in a post this summer, Indiana’s summary judgment makes a grant of summary judgment more unlikely than under the federal standard.

The decline in the criminal realm is less clear and perhaps not uniform across the state. Every defendant charged with a felony will presumptively have a jury trial unless they waive the right and either plead guilty or have a bench trial. Some prosecutors offer more generous plea agreements (and are more risk adverse) than others, and some defendants and defense lawyers are more willing than others to take cases to trial.

Wide variations by county and court

Despite the overall decline in [both civil and criminal] jury trials, some courts continue to hold an average of more than twenty jury trials each year. This chart shows the courts with the highest number of jury trials over the past five years. (It is not clear if one judge heard all of those trials or the judge was assisted by a magistrate or commissioner.)

Although caseloads vary considerably in courts around the state, it is interesting that the five courts with the highest number of jury trials are in Allen County (three of the top five) and St Joseph County (two of the top five). Rounding out the top ten are another St Joseph court, two from Marion County, and one each from Vanderburgh and Lake counties.

In contrast, many courts had no jury trials for a number of years. If a court hears only domestic relations, small claims, or juvenile cases, one would expect no jury trials because the right does not exist. But in some counties with only a Circuit Court, which necessarily hears every type of case, some judges have gone at least four years without a jury. For example, Martin County and Union County last had a jury trial in 2007; none were held in 2008-11.

Infractions/ordinance violations

Finally, although hundreds of thousands infractions are resolved each year in Indiana, only a handful of litigants exercise their right to a jury trial. The Court of Appeals made clear in a 2005 opinion that litigants charged with a traffic infraction have a right to trial by jury.

Conclusion

A resurgence of jury trials seems unlikely. Therefore, an emphasis on trial skills in law school and CLEs must (and to some extent already has) give way to classes and seminars on such things as ADR, negotiation skills, sentencing, and improved writing. And new Supreme Court decisions on plea negotiations arguably assume more significance than cases involving jury selection.

Unfortunately, fewer jury trials mean fewer lawyers, young and old, enjoy the experience described in Judge Gritzner’s article:

There is a special experience in my work that I enjoy all too infrequently anymore. It is when I take the bench and announce the jury has advised they have reached a verdict. I direct the court officer to bring the jury into the courtroom and a group of citizens of all stripes files into the jury box. Their faces often show the strain of their difficult task, but they also show the resolve of knowing they, as a group, have done their duty. Some may show emotion. Some may look as firm as a warden. But each face reveals an understanding of the importance of what they have just completed. The foreperson advises that they have reached a verdict and the form is brought to me. At that moment we all experience the purest form of democracy.
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*My review was limited to the last five years, in part because some of the older data struck me as potentially inaccurate. For example, the 2006 report lists 50 ordinance violation jury trials in Monroe Circuit Court 6, and the 2005 report shows 301 infraction jury trials in Frankfort City Court. (I also doubt there were 34 infraction jury trials in Benton Circuit Court in 2010.)

Posted by Marcia Oddi on December 18, 2012 09:17 AM
Posted to Indiana Courts