Civil juries have been called the “conscience of the community” at the very “heart of democracy.” This is why it is extremely troubling to see the steady decline in numbers of jury trials over the last half-century. Top Chicago personal injury lawyers, along with others in the legal community, have sought to implement reforms to improve the jury system and increase the access to a “trial by jury.”
In December 2003, the Civil Justice Initiative Task Force of the American Bar Association’s (ABA) Litigation Section sponsored a symposium on the “vanishing trial,” and the NCSC Court Statistics Project (CSP) compiled an extensive database on the number of criminal and civil cases in state courts, which showed that both the number and rate of trials in state courts have declined for four case type categories (criminal, civil, felony, and general civil) and for both jury and bench trials.
From 1976 to 2002, the number of civil jury trials has decreased by 32 percent, and the number of criminal jury trials has declined by 15 percent.
Why has the American jury system been seemingly under attack in recent years? One answer is that this attack is nothing new. As early as 1872, Mark Twain commented: “The jury system puts a ban on intelligence and honesty, and a premium upon ignorance, stupidity and perjury. It is a shame that we must continue to use a worthless system because it was good a thousand years ago.” Likewise, in 1911 Ambrose Bierce defined “trial” as a “formal inquiry designed to prove and put upon record the blameless characters of judges, advocates and jurors.”
The recent attack on the American jury is far more potent. Corporations and their insurers have been at the forefront of such attacks on civil juries, seeking to limit corporate liability exposure by replacing the civil jury system with a more manageable statutory structure.
And their call for jury reform is getting louder. Following the recent $253.4 million dollar jury verdict against Merck in the first Vioxx suit in Texas, some tort “reformists” have called for the “End of the Jury System for Civil Cases.” According to Professor Brainbridge of UCLA, this Vioxx verdict “raises serious questions as to the competence of lay jurors to resolve technical issues.”
Other commentators disagree, arguing that juries in civil cases stand as indispensable watchdogs over corporate negligence and corruption. Specifically, the Vioxx verdict illustrates how, “for ordinary Americans, the civil justice system is the last check-and sometimes the only check-against corporations that put profits before the health of safety of their own customers.”
Still, even the firmest supporters of the American civil jury agree that juror comprehension is strained by lengthy cases, complex evidence and intricate law. In such cases, not only are the interests of justice poorly served, but jurors themselves become dissatisfied with their participation. Accordingly, recent jury reform efforts have been aimed at making the jury system more responsive to citizen needs, as opposed to abandoning civil juries altogether.
The American Bar Association (ABA) has recently spearheaded two such efforts to highlight the importance of jury service in our nation: the American Jury Project and the Commission on the American Jury. The former has been charged with producing a single set of modern jury “Principles” that the ABA proposes as a model for courts across the country. The latter has been charged with a mission to encourage appreciation of the American jury system, to persuade the public to participate in the process, and to stimulate reform in hopes of improving the experience of serving on juries.
There are a number ideas for jury reform. Below are some of the more popular, and controversial, forms of jury reform.
(1) One of the more controversial jury-reform proposals is to allow jurors to ask witnesses questions during trial. This practice is slowly gaining acceptance in jurisdictions throughout the country, and is a practice endorsed by the American Bar Association.
Proponents of allowing jurors to ask questions note the difficulty juries face in analyzing evidence presented through one-way communication. That is, attorneys and witnesses speak during trials, while jurors only listen. The United States Court of Appeals for the Fifth Circuit, in United States v. Callahan, held that “[t]here is nothing improper about the practice of allowing occasional questions from jurors to be asked of witnesses. If a juror is unclear as to a point in the proof, it makes good common sense to allow a question to be asked about it.”
There are essentially two approaches on how jurors might ask questions during trial.
Under the first approach, after both lawyers conclude their respective direct and cross-examination, the trial court asks the jurors for written questions; the jury and witness leave the courtroom while the judge determines the admissibility of the questions; the trial court reads the questions to both lawyers and allows them to object; the jury and witnesses are brought back into the courtroom and the judge reads the admissible questions to the witness; after the witness answers, both lawyers may ask follow-up questions limited to the subject matter of the jurors’ questions.
This was the practice recently adopted by the United States Court of Appeals for the Seventh Circuit in SEC v. Koenig, 2009 WL 465594 (7th Cir. Feb. 26, 2009), a civil fraud case brought against the CFO of Waste Management, Inc.. in which the Chicago jury awarded Koenig to pay a civil penalty of $2.1 million, plus disgorgement of $831,500 in bonuses, and $1.2 million in prejudgment interest. The district court judge permitted jurors to submit questions to him, some of which were asked of witnesses.
Under the second approach, the juror writes the question and hands it to the bailiff, who then passes it to the judge; the judge (most often at a break) furnishes copies of the question to the attorneys so long as in the judges opinion, the question-or some variation of the question-is potentially meritorious (having foundation in law as well as being relevant and material to the case at hand); the juror’s question now belongs to the attorneys, who are free to handle the question as they deem appropriate and in their client’s best interest.
Opponents of allowing jurors to ask questions under either approach argue that it may disturb the respective roles of the attorneys and juries, transcending jurors from neutral fact-finders into advocates. Additionally, jurors might become distracted by thinking of questions rather than paying attention to the trial. Furthermore, a probing question from a juror might improperly aid an otherwise ineffective attorney.
Proponents of allowing jurors to ask questions, including the Seventh Circuit in Koenig, find that when jurors are allowed to ask questions, their attention improves, which benefits the overall quality of the trial.
Despite the increasing number of jurisdictions permitting jurors to ask questions, most attorneys remain cautious about this reform proposal. In a traditional adversary trial, lawyers control the questioning of witnesses, subject only to judicial scrutiny. When jurors are allowed to ask questions, attorneys must yield some of this control to the jury.
(2) Another potential jury reform is “Consecutive Expert Witness Testimony.” Most of the criticism surrounding the Vioxx verdict suggests that jurors are incapable of understanding and evaluating complex expert testimony. One jury reform proposal seeks to address this concern by reordering the sequence of proof so that opposing experts offer their testimony consecutively.
In complex cases involving a “battle of the experts,” some jurisdictions have experimented with reordering the traditional sequence of proof to better facilitate juror comprehension. For example, if a plaintiff offers an expert witness on the issue of causation, the defendant’s causation witness would testify immediately after the plaintiff’s expert, rather than much later in the trial during the defendant’s case-in-chief. This procedure would allow jurors to hear all the expert causation witnesses in the same approximate time period.
Another approach would allow each side’s expert to appear together in front of the jury, following their testimony, to answer one another’s questions about the testimony. For instance, expert witness A could be asked to respond to expert witness B’s criticism of expert witness A’s conclusions. This technique allows the jury to examine the extent of any real difference between expert testimony and to compare these differences side by side.
Still, this proposal certainly has detractors. Both plaintiff and defense lawyers are concerned with disrupting their trial presentation strategy by reorganizing the timing of presentation of expert witnesses. Accordingly, most commentators agree such reordering of testimony should not occur without the consent of the judge and all parties.
(3) An additional controversial jury-reform innovation is to allow attorneys to provide jurors with interim summaries during various stages throughout the trial. One common problem for jurors is the inability to put individual pieces of evidence together in any meaningful context. Because jurors can better understand evidence when they know why it is being presented to them, some jurisdictions permit lawyers to make mini-summations during the trial.
Proponents of the practice argue that such summaries are useful in long and/or complex jury trials. Mini-summations can help the jury focus on the significance of evidence and place evidence in context while it is still fresh. The Arizona Supreme Court Committee on More Effective Use of Juries concluded that “[i]nterim summaries can enhance jury comprehension, aid juror recall of the evidence and help jurors avoid making premature judgments in the case.”
Opponents of mini-summation argue that this practice allows lawyers to “put a spin on the testimony before all the evidence is in,” which can be highly prejudicial. Furthermore, opponents note that interim summaries can waste time, bore the jurors, and interrupt the flow of presenting testimony.
(4) A final example of potential jury reform is allowing jurors to deliberate during trial. In most jurisdictions, including Illinois, jurors are prohibited from discussing the case until they receive final jury instructions. However, some jurisdictions have considered permitting pre-deliberation discussions by jurors, especially in lengthy or complex cases.
In fact, Arizona became the first jurisdiction to expressly permit jurors to discuss evidence during civil trials. Currently, Arizona jurors can do so only in civil trials; in criminal trials they must still wait until the final deliberations to discuss the case with one another.
In civil cases in Arizona, jurors are instructed at the outset that they may discuss the evidence amongst themselves during the trial but only in the jury room and only when all are present. They are cautioned that discussion is appropriate only as long as they keep an open mind until they have heard all the evidence, all the instructions on the law, and all arguments of counsel. A number of trial judges across the country are using this procedure on an experimental basis, generally with the consent of the parties.
The foremost objection to pre-deliberation jury discussion is the belief that jurors who engage in this practice will prejudice the case before hearing all the evidence and instructions on the law. This practice also raises concerns about shifting the burden of proof from the plaintiff to the defense, if jurors form an opinion before the defense has presented its case.
Many of the innovative jury reform proposals described above can enhance the civil jury’s decision-making ability. To the extent that reform makes jury duty a more enjoyable experience and helps lawyers communicate more effectively with jurors, such proposals should be seriously considered.
However, jury reform should not disturb the role of jurors as impartial finders of fact, and should not decrease the frequency of jury trials. Top Chicago personal injury lawyers and attorneys across the nation must work to increase the rate of jury trials and learn to communicate more effectively with juries.