12:48, March 01 431 0 abajournal.com

2017-03-01 12:48:05
Supreme Court nominee Gorsuch has a plan to revive the near-extinct civil jury trial

Fewer than 1 percent of civil cases are tried by juries in the federal court system, and Supreme Court nominee Neil Gorsuch has a plan to do something about it.

Gorsuch has joined with Circuit Judge Susan Graber to propose changing federal procedural rules to make civil jury trials the default, the Wall Street Journal Law Blog reports.

Gorsuch and Graber are proposing that jury trials be held in any case where a party is entitled to one, unless the party specifically waives a jury. The judges suggested the idea in a June 2016 letter (PDF at page 73) to the federal judiciary’s Advisory Committee on Rules of Civil Procedure.

“Several reasons animate our proposal,” Gorsuch and Graber say in the letter. “First, we should be encouraging jury trials, and we think that this change would result in more jury trials. Second, simplicity is a virtue. The present system, especially with regard to removed cases, can be a trap for the unwary. Third, such a rule would produce greater certainty. Fourth, a jury-trial default honors the Seventh Amendment more fully.”

The letter recognizes making civil trials the default “would be a huge change,” but encourages discussion of the idea. The committee has said it is researching the suggestion.

The Wall Street Journal Law Blog spoke with University of California at Los Angeles law professor Stephen Yeazel about the idea. He said the idea “sounds dramatic,” but he doubts it would have much of an impact on jury-trial trends. If state courts adopted the proposal, there would be a slightly bigger impact, he said.