79 Judicature 176 (1995-1996)
Trial by Jury or Judge: Which is Speedier

handle is hein.journals/judica79 and id is 178 raw text is: Trial by jury or judge: which is speedier?
An examination offederal civil cases indicates that while trials themselves may
proceed more slowly before a jury, judge-tried cases last longer on the docket.
by Theodore Eisenberg and Kevin M. Clermont

M any take as a given that
~jury-tried cases con-
sume more time than
judge-tried cases. Judge
Richard Posner of the Seventh Circuit,
for example, opines:
Court queues are almost always greatest
for parties seeking civil jury trials. This
makes economic sense. Such trials are
more costly than bench trials both because
of jury fees (which.. understate the true
social costs of the jury) and because a case
normally takes longer to try to ajury than
to a judge.... Parties are therefore
charged more for jury trials by being
made to wait in line longer.'
A close reading reveals that he is writ-
ing about both aspects of a jury's
speed: how long the actual in-court
trial lasts, as well as how long the liti-
gants have to wait before and after trial.
Regarding the first measure of
speed, Posner has quantified his obser-
vation that a case normally takes
longer to try to ajury than to ajudge,
stating: The average federal civil jury
trial in 1983 lasted 4.48 days, com-
pared to 2.21 days for the average
nonjury trial.'2 The available data gen-
THEODORE EISENBERG and KEVIN M.
CLERMONT are professors at Cornell Uni-
versity Law School.
erally agree that jury trials take about
twice as long as judge trials, although
admittedly trials on average are rather
short so that the absolute difference is
not great.3 Most of these studies do not
control for the type of case but, in-
stead, simply compare lengths of all
jury trials and all judge trials. Never-
theless, rough attempts to control for
the type of case confirm that jury trials
take about twice as long.4 Certainly,
most opinions agree thatjury trials last
longer.' The theory is that the extra

steps ofjury trial, such asjury selection
and instructions, more than consume
such savings as the possible stream-
lining of evidence for presentation to
the jury.
So, it may very well be that com-
mentators are correct in saying that
jury trial is slower than judge trial in
terms of actual trial time. As Professor
Peter Schuck of Yale sums up: Al-
l. Posner, ECONOMIC ANALYSIS OF LAW 582 (4th ed.
1992) (no footnotes omitted).
2. Posner, THE FEDERAL COURTS: CRISIS AND REFORM
130 n.1 (1985).
3. See, e.g., 1983 ANNUAL REPORT OF THE DIRECTOR
OF THE ADMINISTRATIVE OFFICE OF THE UNITFED STATES
COURTS 294 (in fiscal year 1983, median jury trial
lasted three days, compared to one day for median
nontjury trial, both rounded off); Kakalik and Ross,
COSTS OF THE CIVIl. JUSTICE SYSTEM 37, 40, 68, 73
(1983) (similar results for both state and federal
courts); Sipes and Oram, ON TRIAL: TIlF LENGTH OF
CIVIL AND CRIMINAl. TRIALS 8-9, 12-15 (1988) (in se-
lected state courts in 1986, median jury trial lasted
13:30 hours, compared to 4:54 hours for median
nonjury trial); ef Wiggins and Breckler, Manage-
ment of Complex Civil Litigation, in Kagehiro and
Latfer eds., HANDBOOK OF PSYCIIOLOGY AND LAW 77,
78 (1992) (over 96 percent of federal civil trials last
nine or fewer days).
4. Zeisel et al., DELAVIN THE COURT 71-81 (2d ed.
1978) (by such techniques as asking participants in
jury trials how long the same trial would have taken
before ajudge, researchers concluded thatjury tri-
als take 67 percent longer-not counting voir dire,

though such data [comparing jury and
judge and controlling for type of case]
are lacking, the longer duration of
jury trials probably does make them
more costly. Still, it is hard to imagine
that these marginal administrative
costs of the jury system are large
enough to affect significantly the de-
bate over jury reform.6
As to the second measure, Posner
which would add about 22 percent more).
A good discussion of trial length appears in
Bermant et al., PROTRACTED CIVIL TRIALS: VIEWS FROM
TII BENCH AND THE BAR 69-70, 86 (1981). There are
two measures of trial length: the usual measure of
trial days counts the number of days on which
proceedings in the trial took place, and the less fa-
miliar measure of trial hours counts the hours
that those proceedings lasted. The proceedings
that count generally include only actual time that
the judge presides on the bench, thus excluding
juty deliberations or opinion writing.
5. E.g., Desmond, Juries in civil cases--yes or no?,
47JUDICATURF 219, 235 (1964) (a typical personal
injury case tried to ajudge takes only half the time
the trial of the same cause would consume before a
judge and jury); Landis,Jury Trials and theDelay of
Justice, 56 A.B.A.J. 950,950-951 (1970); cf. Bermant
et al., supra n. 4, at 43-45 (survey results suggesting
thatjudges are more convinced than lawyers of the
rapidity of bench trial).
6. Schuck, Mapping the Debate on Jury Reform, in
Litan ed., VERDICT: ASSESSING TIlE CIVIL JURY SYSTEM
306, 318 (1993).

176 Judicature Volume 79, Number 4 January-February 1996

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