What Kind of Cases Actually Get Tried?
A few years ago, one of my colleagues was riding the elevator with another attorney. In discussing their law practices, my colleague mentioned that our firm specializes in taking civil cases to trial. The other attorney laughed and told him that her firm was the opposite. “I can basically guarantee that none of my cases will ever go to trial,” she said.
“Call me if one does,” he replied. And as it turned out, that eventually happened, and we were able to assist her with a highly successful debut in front of a jury. But as every young litigator eventually explains to friends and relatives, most cases never make it to trial, most litigating attorneys rarely try cases, and many litigators will go through their careers without ever trying a case to a jury. Indeed, the data shows that federal jury trials have declined by more than 99% since 1962. [1]
So, against that dismal backdrop, what kind of cases actually get tried?
It’s a question that can be approached in two ways. You might first wonder what most trials today look like – that is, if you were to drop into a random jury trial tomorrow, what type of legal claim would most likely be at issue. You might next ask what sort of legal claim is most likely to run the gauntlet of motion practice, discovery, and mediation to be resolved by a jury.
In approaching the first question, it is important to note that criminal trials outnumber civil trials in the federal system and in most states. For example, in California, criminal jury trials outnumber civil jury trials by over a 4-1 margin: [2]
An almost identical ratio holds in Illinois: [3]
There are outliers, such as New York, where the civil/criminal numbers are more comparable and civil trials occasionally outnumber criminal from year to year. [4] But even as an exclusively civil lawyer, it is important not to lose sight of the fact that as a whole, most American trials are criminal trials by a substantial margin. [5]
That said, tort claims involving automobiles are far and away the most frequent type of civil jury trial. In Texas over 50% of 2022 civil jury verdicts were for motor vehicle injury. [6] In Florida, over a third of all 2021-2022 civil jury verdicts were automobile negligence cases. [7] In California over 14% of all 2022-2023 civil jury trials were for personal injury, property damage, or wrongful death involving a motor vehicle. [8] Even in Federal Court, where residency rules and amount-at-issue requirements preclude most typical car crash cases, over 14% of 2022-2023 jury verdicts in diversity cases were for motor vehicle personal injury cases. [9] Although nationwide numbers are not available, based on the data available from the largest court systems, if you were to walk into a civil trial tomorrow, it would most likely involve an automobile. [10]
While significant, this result is largely a function of the volume of automobile tort cases, which make up a significant portion of all civil lawsuits, and the fact that the other major category of civil claims (consumer debt) is particularly well-suited to summary adjudication. So that leads us to the second question: What types of claims are most likely to make it to a jury?
While comprehensive state level data is not available, a look at some of the largest court systems is illuminating. Malpractice claims (primarily medical malpractice) have the highest rates of disposition by jury trial in Texas, Florida, and New Jersey, each over three times as likely to be tried to a jury as the average civil case. [11] [12] [13] In Federal Court, which does not track medical malpractice (and where malpractice claims are less likely to be filed for jurisdictional reasons) patent and employment/civil rights claims have higher rates of jury trials, at three and two times the background rate. [14]
So, what lessons can we take away from all of this?
First, this data speaks to the experience of judges and juries. If you are a commercial lawyer asking for a month to try a contract case or civil fraud claim, you should understand that both the referee and the factfinder are accustomed to shorter trials involving criminal behavior, heartbreaking personal tragedy, or both. That does not mean that you cannot get the time that you need or that the judge and jury will not pay attention. But you should be aware that the individuals that you are dealing with have an expectation of what a trial is, and that expectation may be profoundly different than the case you intend to present.
Second, this data illuminates the factors that can lead any case to a jury trial. Medical Malpractice cases are factually complex disputes that can be highly emotionally charged (on both sides) and involve potential damages that are difficult to pin to a narrow range. Patent and employment disputes often have many of those same characteristics. Not every malpractice case will go to trial, and not every business dispute or debt enforcement claim will settle. But if you have a case – of any kind – where the factual record is complicated, emotions are running high, and damages are hard to pin down, you should be thinking early about how it might fare in front of a jury. Because as rare as it seems, you might just end up there.
[1] See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEG. STUD. 459, 462-463 (2004) (documenting decline through 2002); see also U.S. District Courts—Civil Cases Terminated, by Nature of Suit and Action Taken—During the 12-Month Periods Ending September 30, 2022 and 2023 (“Federal Table C-4”), available at: https://www.uscourts.gov/statistics/table/c-4/judicial-business/2023/09/30 (documenting current trial rates).
[2] California 2022 Report, supra note 3, at p. 87.
[3] Illinois Court 2022 Statistical Summary at p. 166.
[4] For example, in 2019, New York reported 1,586 criminal jury trials and 2,219 civil jury trials. See S. Gibson, B. Harris, N. Waters, K. Genthon, M. Hamilton, E. Bailey, M. Moffett & D. Robinson, eds. Court Statistics Project, CSP Stat, (“CSP Stat”) available at https://www.courtstatistics.org/court-statistics/interactive-caseload-data-displays .
[5] The National Association of State Courts counted 8,359 civil trials and 25,850 criminal trials for the 21 states reporting both sets of data in 2022. CSP Stat, supra note 12.
[6] Texas 2022 Report, supra note 4, at pp. 146-147.
[7] Florida Office of the State Court Administrator, Fiscal Year 2022-23 Statistical Reference Guide (“Florida 2023 Report”) at 4-20.
[8] California 2022 Report, supra note 3, at pp. 98-104.
[9] Federal Table C-4, supra note 2.
[10] Depending on the jurisdiction, you would have a pretty good chance in a criminal trial as well. Traffic related misdemeanors, along with auto theft and felony DUI/DWI cases make up a substantial portion of many state level criminal dockets.
[11] Texas 2022 Report, supra note 4, at p. 146-147.
[12] Florida 2023 Report, supra note 15 at p. 4-20.
[13] New Jersey Judiciary Civil Statistics, November 2023 at p. 89.
[14] Federal Table C-4, supra note 2. Note that because of the unusual categorization of cases filed in federal court, there are some unusual categories where extremely small sample sizes may generate larger jury trial rates in individual years.
