Supreme Court nominee and current federal appeals court judge Neil Gorsuch has a plan, announced long before his potential elevation to the high court became a reality. In a short two-page letter to to the advisory committee on the Federal Rules of Civil Procedure, Judge Gorsuch and Ninth Circuit Judge Susan Graber have proposed a plan (in the PDF opened by the link, see internal pages 73-74) that would apparently do away with the need for any party to federal civil litigation to request a jury trial; instead, the jury trial would be automatically granted by default unless waived in writing. Under current practice, parties must affirmatively demand a jury trial in federal district court within certain time limits or their right to a jury trial may be lost.
Gorsuch and Kramer intentionally don’t provide many details in their proposal, but they are clearly concerned with parties’ inadvertent waiver of jury trial rights, particularly when cases are removed from state to federal court. (Removal procedure, at least in my opinion, is among the most complex aspects of federal civil practice, and there’s no question that inadvertent waiver of jury trial rights in removed cases is a problem.)
There’s much to like and little to criticize in this proposal, and it’s nice to see two judges from different circuits (Judge Gorsuch sits on the Tenth Circuit) and generally differing ideologies come together to suggest reforms. But does this go far enough? In my experience, the more pressing problem with access to jury trials in federal court lies in the unfortunately limited resources allocated to the judiciary, a problem that is even worse in many states (California, for one, comes to mind). This can result in long delays in getting a case to trial, which frustrates the litigants, can complicate access to witnesses and their testimony, and generally hampers the administration of justice.
Judges and court administrators aren’t to blame for this; they don’t control their funding for the most part and I believe that they work hard to make the best of a negative situation. But if Judge Gorsuch wants to “revive” the civil trial, why not advocate for increased funding for the courts, not only in the federal system but at the state level as well? His profile has increased dramatically since he and Judge Graber submitted their relatively noncontroversial idea in mid-June of 2016, and his far more visible platform could nicely enable an even bolder proposal. It’s one thing to advocate sensible rule reform that prevents parties from waiving their rights to a jury trial without meaning to do so; it’s quite another to fight for increased funding for the judiciary so that the “revival” of the civil jury trial can really gain some steam. Technical denial of jury trial rights is unfortunate and can and should be fixed, but the constructive denial of jury trial rights by a functional inability to get cases on the court’s trial docket within reasonable time frames is even more pressing. Most lawyers and judges I know universally support examining solutions to this problem; perhaps Judge Gorsuch agrees and might speak out on the topic.