Came across this article over the weekend by Lynne Bratcher. Lynne is one of the greatest employee-side attorneys in the country. In her article she laments the fact that federal jury trials are all but a thing in the past. Unfortunately she is right. According to this article in the National Law Journal in 1962, 11.5% of federal civil cases went to trial. By 2009 that percentage had dwindled to 1.2%. And as Lynne points out, the problem is even worse in employment discrimination cases. The Wall Street Journal published a study in 2009 and determined discrimination plaintiffs win only 15% of the time in federal court, while other plaintiffs win 51% of the time. What accounts for the difference? Lynne explains:
Two reasons - convoluted unnatural determinations of the law, coupled with summary judgments, cases thrown out by judges with no jury trials. Most discrimination plaintiffs never have a chance to present their cases to a jury of their peers. The judge usurps that role, by throwing out cases on their own.
And, in the rare case that is decided by the jury, almost all of the time, a judge lowers the jury's award. No one ever tells jurors that the judges think their reasoned, debated awards are stupid. In all my years trying cases in federal court, oftentimes after going to the court of appeals to get the judge-thrown-out case reinstated, the judge or the court of appeals slashes the verdict."
No doubt about it, the jury trial is an endangered species in federal court. Federal courts are under tremendous workload pressures caused by a gigantic criminal docket that they really should not have to deal with (criminal matters really should be handled by state courts in most cases) and a Congress that drags its feet in appointing new judges regardless of who is President. These pressures have led to an environment where cases stay languishing on their dockets for years without rulings and a palpable hostility against taking the time to try a civil rights case.
At one time the federal courts stood as the greatest force for good in the civil rights arena. Now they have all but shut their doors on us. I, for one, am sorry to see that happen.