The jury trial is one of the cornerstones of the American justice system, yet today, fewer and fewer civil cases are coming before juries. The AI asked two writers—Neal Ellis, a practicing lawyer, and William Tucker, a veteran observer of the American legal profession—to explain the phenomenon.
[The jury] should be regarded as a free school which is always open and in which each learns his rights . . . and is given practical lessons in the law. . . . I think the main reason for the political good sense of the Americans is their long experience with juries in civil cases.
—Alexis de Tocqueville,
Democracy in America
These patterns of avoidance skew the makeup of juries in the direction of the undereducated and underemployed. “Juries are made up of people who aren’t smart enough to get out of jury duty”, is an aphorism that makes the rounds in courthouses everywhere. This becomes glaringly obvious when a jury largely comprised of high school graduates sits in judgment on a complex, multi-million-dollar antitrust or product liability case that even experts have trouble understanding.Not only do juries often seem unfit for the task assigned them, they can also appear unrepresentative. A few years ago, Mark Houser, a courthouse reporter for the Pittsburgh Tribune-Review, noticed a strange phenomenon at the Allegheny County Courthouse. “Even though African Americans are about 11 percent of the population, there were very few in the jury pools”, said Houser in an interview. “Often you’d look around and realize that everybody in the courtroom was white except the defendant.” Conducting a poll of various neighborhoods, Houser found widespread disparities in racial participation. “In white suburban neighborhoods about 6 percent of the population does jury duty while in black neighborhoods it’s less than 3 percent”, he said. “While African Americans make up 11 percent of the population they are only 4 percent of jurors.” The Tribune-Review found explanations for the phenomenon to be elusive. Jury summons are issued at random. Blacks register to vote at almost the same rate as whites—about 70 percent. “The only explanation we could find was that many addresses on the voter rolls were outmoded”, says Houser. “Low-income people tend to move more often, and the jury commission does not follow up on returned mail.” Reggie Flowers, a child development specialist who found himself the sole African American in a pool of 88 potential jurors, offered another explanation: “A lot of people in the black community don’t want to participate because they perceive the judicial system about the same as they do the police.” This year, in response to the Tribune-News story, the Pennsylvania Legislature adopted extensive reforms that will now provide counties with updated jury lists drawn from welfare and state income tax rolls as well as voter registrations. “The intent is to widen jury pools”, said Houser. Debates about jury trials, fairness and race reached a boiling point during the 1995 O.J. Simpson trial, a watershed in the criticism of criminal juries. The nearly all-black panel in the criminal trial expressed the apparent consensus of the African-American community that Simpson was the victim of an elaborate police conspiracy. Then, in the civil trial, a nearly all-white suburban jury found Simpson liable for $33 million to the victims’ families for “wrongful death.” Inconsistency can afflict the verdicts of even the best-educated, most-representative juries. “The problem with juries isn’t their wisdom but their unpredictability”, says Philip K. Howard, author of The Death of Common Sense (1994) and chairman of Common Good, a tort reform group: Nine juries in a row will say that seesaws are safe for public playgrounds. Then the next one will say [the city] is liable for $10 million in damages. That makes public policy. You can’t have hundreds of juries acting like little legislatures, turning out inconsistent law. If decisions are going to affect the general public, they should be made by judges or legislatures.
Indeed, juries have come under the greatest fire in civil trials, in which they often end up awarding ridiculous amounts of money for seemingly minor grievances—nearly $3 million for a spilled cup of coffee, $50 million for a paint scratch on a BMW, to name two infamous examples. These pick-a-number lotteries have often created a casino atmosphere in the courtroom that leads to routine reductions and reversals in the appellate divisions. The lingering impression is that juries are simply not capable of dealing with large numbers. There may be some truth to this. Cass Sunstein and Reid Hastie, two University of Chicago Law School professors, led a five-year study of 8,000 jury-eligible citizens, summarized in their 2002 book, Punitive Damages: How Juries Decide. Feeding mock juries the transcripts of real cases and asking them to deliberate, the authors found that juries tend to go to extremes. “We asked jurors for an original estimate of the damages and then looked at the result of their deliberations”, says Sunstein. In 17 percent of the cases the jury chose the highest figure that any one juror had estimated and in 10 percent they settled for an award higher than any individual had picked. Without any benchmarks or guidelines, jurors seem to end up competing against each other in bidding up the final award.
In a 2003 decision, State Farm vs. Campbell, the U.S. Supreme Court suggested limiting punitive damages to ten times the compensatory figure, but this figure is still exceeded, hastening the stampede of even deep-pocket defendants out of the courtroom.Attorneys have not been innocent bystanders in this process of warping jury verdicts. Using modern communications techniques, they often go to extraordinary lengths to manipulate juries in both civil and criminal cases. The main venue is “voir dire” (“to see, to say”), the seemingly endless process whereby attorneys from both sides ask probing questions, trying to divine jurors’ inner minds. Clarence Darrow, the great defense attorney of the early 20th century, said Irishmen were his favorite jurors because he considered them unusually compassionate, and thus more forgiving. He also recommended choosing jurors who laughed a lot because they would be less eager to convict. Today, the techniques for predicting jurors’ decisions are far more sophisticated. “We want to gather information on gender, age, education level, employment status and social information such as the kinds of groups jurors join, the hobbies they pursue, and the way they spend their free time”, says Paul M. Lisnek, co-founder of Decision Analysis, a jury evaluation service for trial lawyers. Indeed, trying to psych out jurors’ predilections has become an industry, with almost a dozen major players and hundreds of smaller partnerships and consultants offering their services. “We do community attitude surveys, juror profiles, witness preparation, focus groups and full-scale mock trials”, says Chris Dominick, president of the American Society of Trial Consultants, which now counts 535 dues-paying members. The Society publishes The Jury Expert, which features articles such as “Programming and Persuasion: Winning Your Case at Voir Dire.” “Every juror brings beliefs and attitudes into the courtroom”, says Lisnek. “The concept of fair and impartial juries is an American myth.” If nothing else, all this helps make trials incredibly expensive for all concerned. Jury researchers typically charge five- and six-figure fees. In addition, civil suits usually require lengthy pre-trial discovery proceedings in which each side combs through the opponent’s written records and conducts lengthy depositions of potential witnesses. All this produces hundreds of billable hours. Then there are the expert witnesses, charging anywhere from $200 to $700 an hour for their testimony. All this can push the cost of going to trial into the millions. That’s one very big reason that both plaintiffs and defendants are now seeking alternate venues for settling their disputes. Restoring Respect
So will jury trials become a thing of the past? Not necessarily. Despite the criticisms, the jury has its staunch defenders who argue that the system, flawed as it may be, beats anything that would replace it. Moreover, these defenders are pushing reforms designed to make jury duty less burdensome while simultaneously making juries more representative of the community.Many courtroom professionals maintain that worries about the irrationality of jury verdicts are exaggerated. “When we survey judges and attorneys, we find they think juries make the right decision about 75 to 80 percent of the time”, says Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts. That’s about as good as you’re ever going to get. When you look at any kind of complex decision-making—corporate hiring, doctors making diagnoses—you never get more than 80 percent agreement among the experts. There is always someone who disagrees. Courtroom professionals actually have a very high regard for jury verdicts.
One crucial factor is that, regardless of their prejudices, predispositions or ethnic profiles, most jurors make a sincere effort to render an objective verdict. “Jurors rise to the occasion”, says Hannaford-Agor. “They take their responsibilities very seriously.” Then there is the emerging evidence that jury duty still functions as Tocqueville believed it should: fostering a greater sense of civic responsibility. The Jury and Democracy Project, a non-profit founded by Perry Deess, John Gastil and Phil Weiser, is trying to quantify the presumed benefits of jury duty. Comparing jury service and voting records for all of Thurston County, Washington (home of Olympia), following up with more intensive surveys and personal interviews, and then duplicating the results in different parts of the country, they found that jury service has a measurable effect on people’s behavior. “Jury duty improved people’s tendency to vote more effectively than a full-scale get-out-the-vote campaign or a year-long civics course”, said Deess, who is director of institutional research at the New Jersey Institute of Technology: Former jurors are more likely to read a newspaper and become engaged in community activities. They also have more confidence in judges and lawyers. On the whole, the experience does seem to make people into better citizens.
So, if the core of the system appears to remain solid, what can be done to restore some of the appeal and dignity to jury service? Several reform efforts are in the works. The most obvious improvement would be an increase in juror pay to lessen the burden on working people. Some states still only pay $18–20 a day, which barely covers lunch and travel. “The problem is that there are very few people in the state legislatures advocating on behalf of jurors”, says Professor Amar. “You’ll see a lot of proposals for building new courthouses or increasing the salaries of judges and public defenders, but very few for increasing jurors’ pay.” Perhaps equally important is the demand on jurors’ time. “We treat jurors as if their time had no value”, says Professor Stephen Yeazell of the UCLA School of Law. “We summon them and then ask them to sit in a waiting room for days on end doing nothing. The best way to restore the sense of civic duty would be to treat jurors as if they were doing something worthwhile.” Several states have developed “one day, one trial” systems where jurors are dismissed if they are not picked to sit on a jury the first day. Some states have also instituted paging systems that allow jurors to return to their jobs and be called back to the courthouse when needed. Shortening the terms of individual jurors would require widening jury pools, but this is where the real possibility for reform lies. The American Legislative Exchange Council (ALEC), a bipartisan group, has proposed model legislation that suggests several changes: expand the jury pool beyond voter registration lists to include driver’s licenses, tax returns and welfare rolls; eliminate exemptions for professionals and employees of small businesses; institute a one-day, one-trial system; impose misdemeanor penalties for failure to respond to jury summonses; and create a Lengthy Trial Fund that would pay jurors up to $100 for trial service and $300 per day for trials that extend beyond ten days. The fund would be financed from filing fees charged to plaintiffs in civil cases. “Fifteen states have adopted laws based on our format, but the implementation is not always immediate”, says Amy Kjose, director of the civil justice task force at ALEC. “Only Arizona has adopted the full program, but it’s been very well received.” Arizona has raised jurors’ pay from $14 to $40 a day and $100 a day if a trial goes beyond three days. New York has adopted its own reform agenda under the direction of Judith Kaye, Chief Justice of the Court of Appeals. New York jury pools have been widened and professional deferments eliminated, resulting in highly conspicuous jury service by such luminaries as Mayor Michael Bloomberg and former President Bill Clinton. A more controversial reform would be to limit voir dire. “We waste far too much time on voir dire”, says Yeazell. “Once you remove the people who think they speak directly to God, anyone should be allowed to serve.” It is here, however, that reformers and the trial bar part company. The American Bar Association’s Jury Project actually wants to give attorneys more power to screen jurors. “We recommended that counsel for the opposing parties be allowed more participation in asking questions”, says Patricia Lee Refo, who chaired the project. “In some states judges have limited voir dire entirely to themselves. We also believe there should be more challenges for cause.” Many legal scholars believe we should be moving in the opposite direction. “The real problem is that the court professionals—the judges and trial attorneys—have conspired to limit the power of juries and strip them of their ability to evaluate the case”, says Amar. He believes that peremptory challenges should be eliminated altogether because they enable prosecutors and defense attorneys to fashion unrepresentative panels out of an otherwise representative pool. “The jury”, he argues, “should basically be the first 12 persons chosen by lot out of the jury pool.” Despite disagreement about voir dire, new American Bar Association principles for juries and jury trials are making headway. Some states are enlarging the jury’s power, allowing jurors to take notes and ask questions of witnesses when screened by the judge. Arizona, once again the most progressive reformer, now allows jurors to discuss the evidence while the trial is in progress rather than wait until the end. “A ban on such discussions assumes that jurors are superhumanly capable of suspending judgment for days and weeks”, says Amar. “Common sense says people form provisional judgments. They just have to be reminded not to reach final conclusions until they have heard all the evidence.” Such reforms may not immediately reverse the phenomenon of vanishing trials, but they could forestall further decline. Despite its flaws, the jury trial is likely to remain at the heart of our judicial system. Restoring jurors’ ability to have the final say in the outcome of a trial may actually improve the jury’s record for making common-sense decisions in complex cases. Once again, Tocqueville probably said it best: By making men pay more attention to things other than their own affairs, [juries] combat that individual selfishness which is like rust in society. . . . Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way to preparing people to be free.