By Dr. Ken Broda-Bahm:
Those of us who work in the business of preparing for trial and going to trial are used to seeing the jury as a tool of dispute resolution. We're less used to thinking about the jury's broader political role. Apart from the speeches given by judges at the start of voir dire, we don't often think of the jury as that vox populi serving as an essential and constitutional check on the power of government and large corporations. But it is that sweeping vision, and not the more mundane task of providing closure for cases, that serves as the main rationale for the United States being unique among countries in using juries in civil disputes. We defend the right to request a jury in civil contexts because that right seems to be a critical part of our democratic heritage, and indispensable for an active citizenry.
But does a civil jury continue to serve that vaunted role as a political institution? According to a recent article appearing in the Emory Law Journal (Solomon, 2012), the answer is, "not so much." William & Mary law professor Jason Solomon takes a hard look at the civil jury's well-worn rationale from the perspective of democratic theory, and concludes that the jury falls short of many of its loftiest ambitions because they're generally focused on private torts and are as likely to be anti-plaintiff as they are to be anti-corporate. In addition, Solomon argues, a reliance on popular judgment undercuts rule of law by providing no record or precedent (since juries give no reasons) and leads to less overall predictability. There are clearly some responses to Solomon's arguments, but I'll leave it to the democratic theorists to carry on that debate. However, the article got me thinking: For those working at the pragmatic end of jury decision making, what would be different if, instead of just seeing juries as tools of formal dispute resolution, we took the jury's political role seriously. Moving from theory to practice, this post looks at that question.
In the context of a criminal case, the political role of the jury is more clear: It is a check on placing too much power in the government's prosecutorial hands. But in a civil context, that rationale has always been more difficult. In torts or contract disputes between private parties, there is no overzealous government to guard against. In that case, the reluctant and underpaid juror has more of a right to ask, "Hey, why are we being brought in to resolve your private dispute?" The answer has to be that even in these private conflicts, the government is still playing a role in settling the disagreement, and the jury is just the arm of the government. So, to answer that disgruntled juror, why is a pool of common citizens better than a professional judge? The response is easy for people in my field: Juries more often than not bring a common sense and a collective wisdom that would be missing if we relied on judges alone. To pick one of the more common contexts where many have criticized the lay person's role, "Juries," as Andrew Orlowsky wrote in the Register, are "the only reason that anyone understands patent law at all." Put simply, the value of the common perspective is that it serves as an outward boundary on the hypertechnicality of legal argument: If you don't have an argument that can be understood and applied by a jury, then you don't have an argument. There is some justice to that.
So What Would Be Different If We Took the Jury's Political Role Seriously?
One, We Might Have More Willingness to Go to Trial
Today, of course, a case is far more likely to end in a private settlement than it is to go all the way to a public jury trial, leaving the ultimate result undisclosed beyond parties and attorneys. And counsel's job is to resolve the case, not necessarily to try it. So, lawyers are not going to be focused on the democracy-promoting role of a jury as much as they're focused on the jury, or the threat of a jury, as just one of many tools to bring a case to closure. At the same time, the jury's capacity as a political institution and a public voice may well be part of the client's thinking. As Professor Solomon writes, "Perhaps lawyers value the monetary aspects of the litigation to the exclusion of the value of demanding accountability and answers for wrongs -- a value that, research shows, many plaintiffs want vindicated in litigation" (p. 1351).
No, lawyers should never encourage or tacitly allow a client to resist settlement just for the thrill of trial. But lawyers should make sure they are taking the full spectrum of the client's interests into account, not simply the monetary interest, but an interest in the public role of justice as well.
Two, We Would Do Post-Verdict Interviews Every Time the Law Allows
One of the major criticisms from Solomon's article is that jury decisions are often a black box: We don't know the specific rationale for a jury's decision and, as a result, it cannot serve as the "message" that democratic theory would make it out to be. "Juries don't give reasons for their decisions," Solomon writes, "so their claim to be deliberative-democratic institutions is on shaky ground" (p. 1365). One modern fact that Solomon's critique doesn't take into account is that, once the trial is over, that black box is quite often pried open. When post-trial juror contact isn't prohibited, either a consultant or the attorneys themselves will often discuss the decision and the jury's reasons. As a result, counsel and parties frequently know at least a little about how the jury decided and why.
But Solomon's article should serve as a reminder: When a case does make it all the way to a jury verdict, then the jury's reasons can be an important part of its political role. When judges are worried about intrusion on jurors' privacy, propose a model that would allow them to opt in (most will) by giving a preferred means of contact to the judge. Given the importance of this information, it also shouldn't be relegated to a quick and informal exchange in the lobby. Jurors who have just been released often want to leave and are not in the mood for thoughtful reflection. When approached by attorneys in the case, they also know who they're talking to and know the lawyers are equipped to refute any unfavorable reactions they might have. As a result, jurors may be reticent to explain their decision. When conducting post-trial interviews, it is far better to use a consultant: a person perceived by the former jurors as a neutral and not a player in the case. It is also better to use a structured and planned interview. Instead of hitting the departing juror with a few questions off-the-cuff, schedule a time to talk to the juror in a relaxed setting, usually by telephone, for about an hour.
Three, We Would Treat Mock Trials As Anything But "Mock"
The reality that we see in our work is that most cases involving a mock trial will end up settling prior to the real trial. What that means is that the mock trial, for all intents and purposes, is the real trial, or at least it is the closest that this particular case will come to hearing the vox populi that Solomon writes about. Often, the mock jurors will have some understanding of that by the end of the day and they'll be proud for having played a role in the process. Sometimes that is based on the mistaken assumption on their part, that somehow both parties have come together to conduct this exercise. But often, their pride seems to stem from the belief that, even if it is an adversarial exercise owned by one party or the other, it is still part of the calculation that may lead to a resolution of the case. To the extent that calculation is one that factors in a lay person's view, then it hardly matters whether that lay person is an official juror summoned by the government or a mock juror recruited by a jury research company (except that the latter gets better pay). At the end of the day, there is still that sense of having heard from the public at large.
The founding fathers felt juries were important, not only to protect the prisoner from the prosecutor, but also to serve as a popular voice weighing in on civil disputes. As we move toward a system in which trials are the exception rather than the norm, keeping that voice in the conversation takes some work, but it can be done.
Other Posts on Perceptions of Juries:
- Take Anti-Lawsuit Attitudes With a Grain of Salt
- When it Comes to Bad Defense Venues, Treat Perception as Reality
- Bring the Jury Into Your Mediation
Solomon, J.M. (2012). The Political Puzzle of the Civil Jury. Emory Law Journal, 61: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144376
Photo Credit: stefanie says, Flickr Creative Commons