By Dr. Ken Broda Bahm:
When supporters praise the American jury, it is often in the sepia-toned romantic terms of history. But, to George Washington Law Professor Renee Lettow Lerner, it is more like Lady Gaga’s “Bad Romance.” She writes, “Americans’ romance with the jury – bordering on religious devotion – is doing us no good.” In a five-post series with the Volokh Conspiracy in the Washington Post, Professor Lerner calls for nothing less than the repeal of the Seventh Amendment to the U.S. Constitution so America can follow the example of other common law countries, like England, Canada, Australia, and New Zealand, in simply dispensing with civil juries. “In private disputes,” she writes, “all other countries with respectable legal systems aim for decisions by trained legal professionals.” Her arguments boil down to the observation that the civil jury was a kind of historial accident, that civil jury trials are mostly dead already, and that civil juries are unsuited to the timely resolution of private disputes.
Her arguments center more on broad statements about the jury’s inabilities and inefficiencies rather than on evidence, and she focuses more on history than on current experience. But, in the context of a broad assault and substantial decline in the civil jury, her essays are worth our attention. Here is where you can find the five-part series:
- The uncivil jury, part 1: Americans’ misplaced sentiment about the civil jury
- The uncivil jury, part 2: The unromantic origins of the jury and the continuous need for an alternative
- The uncivil jury, part 3: The perils of jury trial, efforts to control juries, and the deceptive allure of nullification
- The uncivil jury, part 4: The collapse of the civil jury
- The uncivil jury, part 5: What to do now — repeal and redesign
In this post, I will take a look at three of Professor Lerner’s main points and offer a response on each.
Lerner: The American Civil Jury Is Already Dead
This blog, as well as nearly all other litigation-oriented sources, has already noted the troubling decline in the proportion of civil cases resolved by a jury. Professor Lerner takes this news as an obituary. In Lerner’s words: “The civil jury is dead.” It “hardly decides any cases at all.” “We virtually don’t hold civil jury trials anymore.” “In practice, the jury trial almost never happens.” That nearly-complete extinction, in her view, sets the stage for the argument that it would do little harm to simply eliminate the right to a jury trial in civil cases.
Response: Not Quite Dead Yet
Without minimizing the problem of a declining jury trial, we can still paraphrase Mark Twain in noting that reports of the civil jury’s death have been greatly exaggerated. Data on a number of civil jury trial verdicts are notoriously difficult to obtain, and Lerner herself quotes 2002 data to note that juries account for just .6 percent of civil case disposition. But equating that small percentage with outright death mistakes proportion for volume. It isn’t true that a small percentage must equal a small number, and it is still safe to say that our courts are still seeing many civil jury trials. Based on the most recent data from the National Center for State Courts, for example, tens of thousands of civil jury cases are still making it to the finish line annually.
Lerner also doesn’t fully take into account the actual or potential jury’s effect on the cases it doesn’t decide. While she does give quick mention to cases that are influenced by “the shadow of the jury,” she dismisses that with the simple line that “there is, however, often a large degree of uncertainty and enormous pressure to settle.” Yet those same settlement decisions are still routinely informed by intelligence on what a jury would have done or might still do. For those with substantial experience in civil litigation (Lerner’s experience seems to be limited to a two- or three-year stint as Deputy Assistant Attorney General for the DOJ), the civil jury is still a living and breathing reality. Also, the tens of thousands, if not hundreds of thousands, of mock jurors weighing in on those cases before they settle, are also providing a valuable civic service and making those cases far less “unpredictable” than Lerner would assume.
Lerner: Juries are Unsuited to Private Civil Cases
While Lerner, a legal historian by training, notes the reasons for the civil jury’s birth in the context of the Norman English crown, she believes that its usefulness has been overwhelmed by modern pressures. “In the late 20th century,” she says, “the civil jury collapsed” due to the problems of juror independence and the potential for nullification. Quoting opinions as far back as Alexander Hamilton in the Federalist #83, she voices the common concern that some cases are simply too complicated for untutored jurors (not mentioning the reality that criminal cases can be just as complicated). The unification of common law and equity claims, in her view, has led to a civil procedure allowing “flexible claims, joinder of multiple parties and claims, complex factual disputes” leading to what she calls the “unlawful, unpredictable results that undermined the authority of legislatures and courts, and thwarted the ability to plan and carry out actions.” She also makes the bold and surprising statement that “the problem of bribery is endemic to the jury,” but in support of that, she references only her own post on the very early history of the jury.
Response: Civil Juries Get It Right
Lerner asks the question rhetorically, as if the answer were obvious: “If we were designing a legal system from scratch, would we entrust to a group of inexpert laypersons decisions about high-tech patent infringement, civil fraud, or product design defect, together with associated damages.” My answer: Yes. It is important to note that in assuming that lay jurors are too biased or too confused to render verdicts in civil cases, Lerner is offering a social science conclusion, but without a single piece of social science evidence. Yes, she could have found evidence that jurors are often confused by instructions and unaware of pervasive biases, but those factors are by no means unique to jurors. Arbitrators, mediators, and judges are human as well, and noting the humanity of a human-based system of dispute resolution is not a critique. Making the assumptions that judges are “reasonably competent and free from malignant pressures,” Lerner embraces the aristocratic idea that the specialists simply must be better. But the social science indicates that legal training doesn’t eliminate bias, and, far more often than not, juries will arrive at a decision that a judge would consider factually and legally correct. And furthermore, the presence of that civil jury serves a useful role. As Andrew Orlowsky wrote in the Register, “Juries are the only reason that anyone understands patent law at all.”
Lerner: Support for Juries is Based on Sentiment, Romance, and Myth
Virtually all defenses of the modern civil jury, like this one from the Center for Study of Responsive Law, have made heavy use of historical figures like Jefferson, De Tocqueville, and Blackstone in praising the American juror. Lerner has no patience for that. “Reverence for this history,” she says, “has blinded Americans to the current state of the civil jury and the legal system.” Rather than being a bulwark of democracy, the development of the civil jury was driven by Norman political considerations in England during the 1150s and 1160s, and might well have never existed. As the jury evolved from groups of villagers who came in knowing the parties and the facts, to blank slates, trials became longer, more expensive, and less predictable. In modern times, she notes, “Extensive jury selection by lawyers also undermines the rationale that the jury represents the voice of the community.”
Response: The Present Value of the Civil Jury is No Myth
Taking that last point first, the one-line idea that attorney-exercised peremptory challenges diminishes the jury’s role as a vox populi ignores the proper role of jury selection in reducing bias. To the extent that competently conducted voir dire is able to reduce those who harbor the strongest biases against each side, the result is a verdict delivered by relative neutrals, and that is a far stronger popular statement than a verdict delivered by a potentially biased panel, or by a potentially biased judge for that matter. As far as those judges are concerned, while Lerner trusts them to simply take over for the civil jury, she does not trust their assessment of the jury. “Judges say things like ‘Juries try really hard’; ‘Jurors take their responsibility seriously; or, my personal favorite, ‘Juries usually get it more or less right,’” she says. But rather than sharing any evidence showing that those judges are incorrect, she simply dismisses those common evaluations with the single line, “Some of these judges haven’t presided over a civil jury trial in years.” Okay, but I think it is safe to say they’ve been involved in far more jury trials than Lerner in her two or three years as an Assistant Attorney General.
As a litigation consultant, I suspect that Lerner would lump my reactions in with the reactions of those who, she says, defend the civil jury only because one “regards maintaining civil juries as in its economic interest.” But I don’t think that’s an accurate critique. If the civil jury were to breath its last tomorrow, good litigators would still be needed, and so would good consultants. Opening statements would still need solid messaging, clear and influential themes, sound strategy, and compelling visuals. We know from a large and increasing proportion of our present work that one’s status as a mediator, an arbitrator, or a judge does not eliminate the need for, or make one immune to, the elements of effective human communication. If we were to take Professor Lerner’s advice on face, repeal the Seventh Amendment and eliminate the American civil jury, those who practice and advise on the art and social science of effective legal communication would still be in high demand. What would be lost is not jobs, but an irreplaceable institution of citizen participation. What would be lost is that elegant bar: If you want to meet your burden of proof, that means getting this group of citizens – this unspecialized and diverse collection of human beings – to both understand and agree with your point of view. There is actual beauty, and not just nostalgia and myth in that.
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Other Posts on the Role of the Jury:
- Consider the Jury’s Political Role
- The Jury is Out: Make the Most of Your Experience In an Era of Fewer Trials
- Don’t Pull the Plug on the American Civil Jury Just Yet
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Image Credit: 123rf.com, used under license