By Dr. Ken Broda Bahm
The American civil jury trial was on life support before the pandemic. For a generation at least, the trend has been toward a reduced scope for a jury’s decision, an expansion in the power of judges to resolve things in advance, caps on the jury’s damages, and a far greater prominence for private arbitration. With less than one percent of all case resolutions taking place in either state or federal court, trial by civil jury was by far the exception rather than the rule. In that setting, when the pandemic came along, it was easy enough in most jurisdictions to simply put jury trials on hold rather than try to find a way to make it work. But even if tomorrow saw a surrender from the Delta Variant, and even if all the vaccine resisters dutifully marched into the clinics, we would still see a tremendous backlog of delayed and un-filed cases.
A report out this month from UC Berkeley’s Civil Justice Research Initiative (Jolly, Hans & Peck, 2021) makes the case that we now have the imperative to save the civil trial. They note,
“Americans ought to be alarmed that the civil jury has fallen into disrepair and neglect, ceding authority reposed by the Constitution in the people to unrepresentative judges, legislative bodies with little regard for our system of justice, and private actors who have locked the courthouse doors. The COVID-19 pandemic has accelerated the evaporation of this essential institution, creating a backlog of civil cases that will take years to address.”
Potentially, we are at a crossroads. Either the constraints and the backlog will further diminish the prospects for the civil jury trial, or it will force new thinking that might breathe new life into this valuable institution. Hoping, like me, for the latter, the report’s authors argue that the steps that will be needed to address the case backlog could also be steps that make the civil jury trial easier, better, and more common. While the report takes a broader view in looking at all the reforms that might save the civil jury, in this post, I want to focus on the unique role the post-pandemic phase might play.
Reasons to Save the Civil Jury
Appreciating the role of the jury ought not be just a matter of quoting De Tocqueville and appealing to a sepia-toned past. It should also be a matter of understanding the social science and the very practical and modern advantages of decision-making through citizen participation. The report authors lay out a good case that much of the suppression and the constriction of the jury’s role has been led by assumptions and flat-out myths about jurors being too emotional, being more extreme than judges, or in failing to understand content that is complex or based in science. The facts show that, in contrast, jurors try hard to base decisions on facts and law, are generally moderate and comparable to judge’s in their decisions and can handle a good amount of complexity. There is also a good case to be made on the advantages of better discussion and decision-making based on the greater diversity and reduced groupthink that comes from asking strangers to work together. Finally, there are the benefits of civil engagement, and the enhanced legitimacy and ownership over our systems of justice that comes from jury service — a benefit that seems sorely needed right now.
Ways the Pandemic Might Help Save the Civil Jury
The Civil Justice Research Initiative authors propose a number of general solutions to the crisis of the civil jury including undoing tort reform, rolling back caps, returning to a “jury-default” rule (so parties would need to opt out rather than in), and implementing active jury reforms (expanding questions, notes, other factors that help jurors to be active participants). One of the reforms that stands the greatest chance now in the face of the present and looming case backlog, however, is expedited jury trials. The authors argue that voluntary arrangements that allow 12-person juries to be available for shorter trials, with limited discovery, and potential risk parameters (like “high-low” agreements) could go far in cleaning out the backlog and addressing the longer-term threats to the civil jury:
Given the ongoing impact of COVID-19, expedited jury trials could provide a method for managing the backlog of civil cases in a way that provides some, albeit more limited, space for community involvement. Expedited jury trials also provide a way to address the concerns of litigants who, correctly or incorrectly, believe that even during non-pandemic times that jury trials are too slow, risky, and expensive.
These could potentially be further streamlined by using online resources for jury selection, witness testimony, and other phases of trial, making it something we could get on with even as we wait for the pandemic to abate. Productive ways to simplify and speed up the jury process could help reduce many of the barriers while potentially bringing back the benefits.
Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current area of litigation, or a question about your own case, contact me now.
Other Posts on Saving the Civil Jury:
- Fight for the Civil Jury
- Treat Your Jury as Not Just Legal, But Political and Moral as Well
- Don’t Pull the Plug on the American Civil Jury Just Yet
Jolly, R.L., Hans, V.P., & Peck, R.S. (2021). The Civil Jury: Reviving an American Institution. U.C. Berkeley School of Law, Civil Justice Research Initiative: https://civiljusticeinitiative.org/wp-content/uploads/2021/09/CJRI_The-Civil-Jury-Reviving-an-American-Institution.pdf