According to a post in the WSJ Law Blog, jury trials of civil cases in the federal system has virtually disappeared.   In 1962 11.5% of federal civil cases were tried, compared to only 1.2% in 2009.

The subject of the vanishing jury trial has been discussed among lawyers for at least the past decade, if not longer.  While we know of no statistics that analyze the percentage of employment claims that are tried to a jury, anecdotal evidence and experience show the numbers are similarly low.   Why is that so? And more importantly, should employers be concerned about the low number of employment lawsuits that actually make it to trial?

It is important to note that jury trials in employment cases are a relatively new phenomenon.   Prior to the 1991 amendments to Title VII, most courts held there was no right to a jury trial under that law (which bars discrimination on the basis of race, sex, religion, national origin).   The ADA was enacted in 1990.   Jury trials were available for age discrimination claims before the 1990s, but simply were not common. Jury trials for claims alleging violations of the Iowa Civil Rights Act have been available only since 2005.

I believe there are essentially two reasons most employment cases are not tried: the expense of defending a case through trial, and the risk of losing, particularly the risk of a sizable award of plaintiff attorney’s fees even if the damages are low.    Management side lawyers would prefer to see more cases tried, not only because that is our business, but because defense verdicts really have a deterrent effect on the filing of marginal cases.   One of the reasons there are so many employment claims is because almost all of them result in the payment of settlement money to a plaintiff.   Trying more cases might even be more economical in the long run.