Houston, TX commercial litigation attorney David Berg explains what is causing the disappearance of jury trials in the U.S. He considers the most profound example of this in civil jury trials. The Seventh Amendment guarantees a trial by jury in matters involving more than a minimal amount—fifty dollars at the time it was passed in 1791 with the Bill of Rights. The amendment not only promises a jury trial, a trial by one’s peers, but also protects the jury’s fact-finding: except in the rarest of circumstances, those findings cannot be overturned.

Over the years, however, the courts have shifted this landscape. Mediation, arbitration, and other alternatives have emerged, but he sees these as offloading justice. In his view, the finest way to resolve disputes is through a jury trial, followed by a judge trial if necessary. Outsourcing justice, he believes, departs from what the founders intended.

The trend began with a set of cases in 1986 that expanded the use of summary judgment. Justice Brennan, in the Liberty Lobby case, warned that breathing life into summary judgment would create “paper trials” at the end of discovery—and that prediction came true. Discovery has become a profit center, and summary judgment, he believes, has shifted fact-finding from juries to judges.

He points to Daubert and Kumho Tire as the clearest examples. These cases require judges to conduct a “gateway” assessment of expert testimony, determining credibility, methodology, and the basis for the expert’s conclusions. Justice Rehnquist, in his dissent from Daubert, emphasized that for over 200 years, it had been the jury’s role to weigh the persuasiveness of expert testimony and consider whether it imparted useful knowledge. By shifting this responsibility to judges, the Supreme Court—and even justices traditionally seen as liberal, like Breyer and Pryor—have undermined the jury’s core function.

Procedural hurdles at the outset of trials have further eroded the protections of the Seventh Amendment. In his view, this shift away from juries to judges is not consistent with the original intent of the Constitution, weakening the jury’s role as the ultimate fact-finder in civil cases.