September 14, 2015

Fight for the Civil Jury

By Dr. Ken Broda-Bahm:

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This past Friday I attended a fascinating, albeit a little terrifying, conference for the Civil Jury Project at New York University School of Law. Entitled “The State and Future of Civil Jury Trials,” the conference kicked off what U.S. District Judge William Young called, “The last best hope for the civil jury in the United States.” The goal of the conference, and the project more broadly, was to bring together a team of academics, judges, and trial consultants in order to research and strategize ways to preserve and promote the role of citizens in America’s globally unique form of conflict resolution and democratic engagement: the American civil jury. As Yale’s superstar constitutional law professor Akhil Reed Amar put it, “The jury needs friends.” And speaking of those friends, the conference featured some serious star power on the stage. In addition to Young and Amar, those taking their turns on the dais were jury critic Renee Lettow Lerner of GW University Law School (answered passionately by professor Amar), several top jury researchers including University of Nebraska-Lincoln’s Brian Bornstein, University of Colorado’s Edie Greene, Northwestern’s Shari Seidman Diamond, and many others. The session’s keynote was provided by U.S. Senator Sheldon Whitehouse who noted that instead of hoping for a legislative fix, we need to seek solutions from those inside the conference room.   

Those in that room included a large number of judges, academics, attorneys, and trial consultants. I am honored to be on the advisory board for this project, and also favorably impressed that, along with very prominent academics and judges, the project is including a large and diverse group of jury consultants as well. There have, of course, been several other efforts to protect and expand the role of the American jury, but this effort is distinguished by its level of support, both in the form of structure and finances as well as in the form of the number of those involved who have the power to make a difference, including a large number of judges. It is fair to say that the seriousness of the crisis is being felt as the proportion of jury trials continues a precipitous decline. Center for Jury Studies Director Paula Hannaford-Agor shared data showing that, “It’s worse than we thought,” noting that resolution by jury now appears to account for just one tenth of one percent of civil case dispositions. In this post, I will share a few reflections from the conference on what trial lawyers and other friends of the jury can do about it.

Top 10 Reasons the Civil Jury Is Going Away 

Before offering prescriptions, it makes sense to ask why trial by jury would decline so much in a relatively short time. Ten reasons were mentioned at the conference.

1. Duration.  The path from first filing through final appeal is simply too long for the vast majority of litigants. It also doesn’t help when we tolerate “paper blizzard” strategies that are designed to run-out the clock and wear down the other party.

2. Expense. The cumulative costs of counsel, discovery, expert witnesses and, yes, trial consultants put trial practically out of reach to most potential litigants.

3. Judicial Management. When judges see themselves as “case managers” rather than trial court judges, their goal can be to just facilitate an end to the case. In that context, trial comes to be seen as a failure in the process, and not its ultimate purpose.

4. Judicial Encroachment.  Summary judgments and 12(b)(6) rulings have taken a larger share of case dispositions thanks to a line of Supreme Court cases detailed at the conference by NYU professor Arthur Miller. While judges are supposed to determine law and juries determine facts, “that line has been crossed” with the Court’s tacit encouragement according to Miller.

5. Private Dispute Resolution. Mandatory arbitration and mediation, along with the widespread use of contract clauses that surrender one’s right to trial by jury means that, in professor Miller’s words, “Our public system is being replaced with a private system.”

6. Uncertainty. It’s considered a truism that “A jury can do anything,” and that makes some litigants feel that it is just too chancy to put their fate in the hands of a jury. Companies based outside the U.S. that lack a jury tradition can be especially susceptible to this doubt.

7. Runaway Results. Part of that uncertainty is unique to defendants, based on the fear of an extreme verdict: a fear that has been to some extent cultivated by the business and insurance communities playing to popular perceptions of “Hot Coffee” verdicts.

8. Public Exposure. Another factor that can make especially defendants reluctant to go to trial is the attendant publicity. Based on the concern over a “domino effect” in the event of an adverse verdict, many prefer a quiet private settlement instead.

9. Perceived Institutional Bias. While there is good evidence against it, there is a belief that some parties, like corporations or attorney defendants, simply cannot get a fair hearing from a jury based on a built-in bias that is too entrenched to be controlled in voir dire.

10. Presumed Lack of Comprehension. Because jurors aren’t lawyers or subject area experts, some believe that they just can’t handle technical topics or complex litigation. Lacking a good understanding, the fear is that jurors will just base their decisions on surface factors that the parties can’t control.

The first two — time and expense — are probably the biggest reasons, though the other eight are also nothing to sneeze at. While there is justifiably some attention within the Civil Jury Project toward testing innovations which improve the jury trial experience, it is probably safe to say that any reforms that don’t address these reasons, particularly time and expense, will be as Paula Hannaford-Agor said, “rearranging the deck chairs on the Titanic.”

What Can We Do About It? 

So other than expressing alarm and dismay over the civil jury’s rapid decline, what steps can academics, consultants, and bench and bar take in order to preserve the American civil jury? The goal of NYU’s Civil Jurt Project is to develop an answer to that question. The answer should be grounded in research and practical experience, but then it is our responsibility to spread the word about it. In the meantime, however, there are a few concrete steps that came out of the conference discussions.

1. Support Experiments that Simplify the Trial Process

By nature, advocates tend to resist limits. But the cumulative effect of that bias has been to bloat civil discovery and to render it out of reach to too many parties. Instead of harboring suspicions of anything that would reduce the scope of discovery, litigants interested in preserving the jury trial should cautiously investigate experiments, like Colorado’s Simplified Procedure, for example.

2. Support Innovations that Improve the Quality and the Experience of the Jury 

There are a number of innovations that have a robust track record and empirical support dating back decades that are still not broadly employed in courtrooms. Providing instructions and verdict forms prior to opening statements is one example. Judges have a clear role to play in opening their courtrooms to better methods, but they often won’t where one or both sides object. So attorneys and parties need to be open-minded as well.

3. Defend the Jury in Your Own Communications

At the conference, University of the District of Columbia’s law professor Andrew Guthrie Ferguson said, “We need a single sentence answer to why the jury matters.”  Earlier in the conference, Yale’s Akhil Amar gave a good answer, I think: “The jury is the embodiment of popular sovereignty, par excellence.” In the midst of litigation, however, parties are naturally more interested in a fair shake than in popular sovereignty. But particularly when clients express unfounded doubts about a jury’s ability to understand a case or to reach a reasonable verdict, attorneys need to share their experience that it isn’t just possible, it’s the most likely result.

4. Learn More About the Attitudes Turning Parties and Lawyers Away from Trial

Researching the effectiveness of innovations designed to improve jurors’ experience is important, but the most important research will more directly address the reasons why litigants are preferring modes of resolution other than trial. When cases settle for the wrong reasons, or when parties seek nonjury resolution due to inaccurate beliefs about their chances with a jury, then research has a persuasive role to play. Some, for example, feel that jurors can’t treat a corporation fairly, or could never support an attorney as a professional liability defendant, when neither assumptions is supported by the research.

5. Advocate

Ultimately, it may come down to a number of players — judges, attorneys, consultants, and academics — more purposefully acting as advocates for the jury. Former jurors themselves can also help in this regard. As Professor Ferguson also noted, we need to “capture and amplify jurors’ voices.” Organizations and individuals should take steps to responsibly and legally interview and survey former jurors in order to record what they liked and investigate what they didn’t like about their service. Sharing those results might aid a broader public understanding of the value of jury service. Judge William Young of the U.S. District Court, Massachusetts notes, “We need a robust and constitutionally- vigorous understanding of the 7th Amendment” so that it might come closer to rivaling the First or Second Amendments in the public’s pantheon.

The American civil jury isn’t dead yet — I just picked one this morning. But the trend is unmistakable, and the civil jury is in trouble. There is no guarantee that increased professional attention will save it, but it is guaranteed to continue to wane without a radical effort. For my part, I’m looking forward to continued discussion, investigation, and especially action on this issue.

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Other Posts on the Advantages of Juries: 

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Image Credit: 123rf.com, used under license

 

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