By Dr. Ken Broda Bahm:
Alexis de Tocqueville, France’s number one America fan back in 1835, was particularly fond of our jury system. In an oft-quoted passage, he said that “The jury, and more especially the civil jury, serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions.” I added that emphasis to “especially the civil jury” because, in this case, the philosopher’s theory doesn’t quite square with the empirical reality. A new research article (Hans, Gastil & Feller, 2014) set out to measure political engagement following jury service to see if it really does serve as “preparation for free institutions.” Based on a seven state study, the answer ends up being a qualified one. Participating in a criminal trial leads to more civic engagement (measured in increased voting frequency), but participation in a civil trial has no such benefit — at least not when measured generally.
The researchers offer several reasons why this might be an expected result. Thanks to news coverage and legal dramas, our image of the jury is likely to call up a criminal case more readily than a civil one. In a criminal case it is also more clear that the juror is being asked to serve as a judge of the state’s actions and that could also lead to a greater feeling of civic responsibility. In addition, the civil trial’s greater reliance on smaller juries and nonunanimous verdicts may serve to make deliberations less robust and engaging. Ultimately, there are factors that mediate how salient a juror’s political role is in a trial context. By isolating those factors, the researchers demonstrate that civil trials can lead to greater civic engagement, but it depends on how they’re set up. In this post, I not only share this research, but also make a case for why litigators should care about the civic motivation that jurors do, or don’t, bring to the task.
What Makes a Civil Trial Less Civic?
Building on a number of their own studies of the conditions and effects of American jury service, the researchers (Hans, Gastil & Feller, 2014) begin with the ideal. “Jury service,” they write, “should be a particularly potent form of deliberative democracy, because it engages citizens in deliberation with one another to resolve important social and political disputes.” To check on whether the idea lives up to the reality, they turn to data involving a complete census of juries in selected counties from 10 states — a total of 3,378 empanelled jurors. They also pull voting records in these counties to use as a general and admittedly partial measure of political engagement.
The broad conclusion is that the criminal jurors are more likely to become politically engaged by voting more frequently, but the civil jurors are not. That finding, however, prompts the team to dig deeper and look for the factors of civil trials that mediate this effect, in the hope that paying attention to these factors can allow the civil trial to more effectively live up to its civic potential.
I discuss those features below, but first there is one obvious question to address.
Why Should Litigators Care About Civic Engagement?
Granted, litigators really shouldn’t care whether their ex-jurors are voting more frequently or not. But they should care about the reason why they vote or don’t vote afterward, because that relates to the frame of mind jurors bring to case while they are there. Whether jurors see themselves as playing an important role on behalf of the community, or as just resolving a purely personal dispute, can be important in determining the motivations jurors bring to the task. Because a civil trial risks being viewed as just a socialized form of private dispute resolution, highlighting the more public relevance of the case can be an important challenge.
Of course, the message has to be consistent with your overall theme in the case. But in many contexts, it will be better for jurors to see their role in its full civic glory. E.g.,
You are the community’s voice in determining what we do and don’t allow in the marketplace.
As a group, this jury provides the decisive word on whether we still embrace personal responsibility or not.
Both companies involved in this case, the judge and the community at large, have come to you asking for that vital ingredient: common sense.
Framing juror involvement in these ways can help you bring a seriousness to jurors’ role and help them see your preferred verdict in a more noble light. In addition, for at least some of the recommendations listed below, defendants may see an additional benefit to the extent that those trial features set a higher bar for a plaintiff’s verdict.
How Can Litigators Make the Trial More Civic
In those cases where a more civic frame of mind helps, here are a few messages for the judge and for the jury.
Ask for Larger Juries
Jury size is often set, but in some cases, the judge does have discretion to have more or less, particularly in the case of alternates. The researchers found that “the larger and more representative jury offers a more inclusive and dynamic public space” and that means that more jurors deliberating tends to lead to greater feelings of civic engagement. If you’re a defendant and would benefit from a greater number of jurors, consider citing this research in a motion for a larger panel. Because judges tend to believe the speeches they make to the venire during jury selection on the civic benefits of service, it will help to be able to show empirical evidence that a larger jury is more likely to lead to civic engagement.
Ask for Unanimity
The decision rule in a given venue (whether it requires unanimity or some super-majority) is even more likely to be set. Still, it is good to know that if there ever is latitude — before either a judge or a legislature — then unanimity promotes more civic engagement. This is indeed what the research found: In trials with a required unanimous verdict, jurors deliberate longer and harder and the result was that they are left with a better civic experience more likely to lead to engagement. One area where we can directly apply this is in the mock trial. Even in venues that don’t require a majority verdict, we will typically tell mock jurors that they have to come to a unanimous verdict. That makes them less likely to dismiss minority viewpoints and more likely to fully engage, and that means we learn more.
Play Up the Organization
The researchers document the lowest levels of civic engagement in connection with trials that are simply individual versus individual: e.g., automotive collision cases. When there is no organization involved (other than insurance companies behind the scenes, I suppose), then the case seems like a purely personal dispute with little public importance. We have previously advised that large organizations need to personalize, and that is still good advice: Companies and other organizations need a face. But what this research tells us is that we shouldn’t try to make the organization disappear altogether. If the case is just person versus person, then jurors are less likely to put the case in the kind of frame that would emphasize their own community voice.
Play Up the Political
“Political” is a much abused term these days, most often being equated with “partisan.” When I use the word, however, I am thinking of its root word, the Greek “polis.” The “polis” is not just the government, but is more broadly the shared place where citizens come together in order to resolve a problem. The civil trial is nothing if not that. You can play up that space in the context of your civil trial by emphasizing the community interests at stake — an interest in reliable contracts, protected patents or protected innovations, clean water and land, or affordable energy, et cetera. Look at what values are at play in your case and ask, “How will this jury’s verdict impact the community?”
Going back to the observations of de Tocqueville, the researchers find that it isn’t hopeless. “Civil juries can spark a civic awakening for jurors, depending on the context of the trial.” However, “when the jury becomes small, majoritarian, and focused on more individual claims with little public heft, it may cease to function in the way criminal juries and other deliberative bodies do.”
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Other Posts on the Civic Role of Juries:
- Consider the Jury’s Political Role
- Don’t Pull the Plug on the American Civil Jury Just Yet
- Appeal to Your Juror’s “Temporary Identity”
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Hans, V. P., Gastil, J., & Feller, T. (2014). Deliberative Democracy and the American Civil Jury. Available at SSRN 2406141. URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466411
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