Health Law Monitor

Let’s not give up on jury trials

July 6, 2020

By: Gilbert A. Dickinson

Civil jury trials are guaranteed under the 7th Amendment for all cases in Federal Court, and that right is incorporated into the constitutions of almost every state. So, we can continue to demand jury trials in our cases even though it is unclear how long we will have to wait for them to resume. The courts must accommodate both criminal and civil jury trials and are in the process of trying to figure out how to conduct them in a way that protects the safety of all involved while preserving the integrity of the process. But while doing so, an invitation is being made to attorneys and their clients to agree to a bench trial. A bench trial eliminates the need to empanel jurors and provides opportunities for the use of stipulations, summary exhibits, and remote testimony in ways that might not seem practical or effective with a jury.

Waiving a jury is a legitimate consideration for attorneys and their clients and should be discussed. It may be that a bench trial, or even private arbitration, could be viable option in some cases.  In fact, many clients and some attorneys, might wonder why we should use a jury in the first place. That opportunity is certainly increased now, at a time when lack of access to a jury trial may delay resolution of a case. However, those of us with substantial civil jury trial experience are convinced that jury trials should be restored as soon as possible. The purpose of this message is to briefly outline why.

1. The historical purpose behind the 7th amendment was to provide an objective community- based assessment of the claims of the parties, unaffected by government influence. That is still needed.
2. The use of a jury also protects against personal bias. The voir dire process allows the exploration of individual bias based on culture and personal experience. It allows us to ask the question – are you the right juror for this case? We don’t get to ask a judge that question. We are dependent on the judge voluntarily speaking up and recusing him or herself in the event of bias or undue influence. But that doesn’t typically happen, and there is no way to really know what life experiences a particular judge has had that could influence the outcome of the trial.
3. The jury panel possesses a collective intelligence and wisdom that is not found with any sole decision maker. This is particularly important where sympathy is a concern. While it is common for people to express doubt about the ability of a jury to avoid the influence of sympathy, it is unrealistic to think that a judge is not subject to the same influence. In fact, any sole decision maker is more apt to “split the baby” rather than make a hard decision. Members of a jury panel, on the other hand, can take strength and comfort in arriving at a group decision. Another common misperception is that some cases are too complicated or technical for a jury to understand. Our job as attorneys is to make complicated issues understandable, whether for a judge or jury. Jurors have their collective experience and intelligence to bring to a problem as they debate the case and try to come to a decision. They can also ask questions. Post-trial interviews of jurors inevitably demonstrate how seriously jurors take their responsibility and the genuine insight that is produced by their collective assessments.
4. The reliability of the jury process is generally not affected by the mode of presentation. This means we can afford to experiment with trial procedures that shorten trials and protect the participants. This conclusion is based, in part, on a study conducted in California regarding its summary jury trial program. Under this program, trials are conducted in one to two days rather than 1 to 2 weeks. These short trials are accomplished by using strict time limits, leading to the use of stipulated summaries and exhibits and the selective presentation of key testimony. An analysis of outcomes shows that the results were essentially the same as with traditional trial methods when comparing the percentage of plaintiff and defense verdicts and the verdict ranges.
5. Jury trials are good for our legal and political environment. At a time when the public trust in our legal system is waning, jury trials become even more important. Jury trials are the ultimate form of democracy, and it has been found that people who have participated in jury trials look more favorably on the judicial system and tend to become more active in politics. While almost no one wants to sacrifice their time to serve on a jury, the almost universal feedback from those who have served is that it was valuable and rewarding.

So what does this mean?

It is tempting to see a bench trial or arbitration as an easy way out, especially if the trial attorney is not very experienced with jury trials. Even for experienced attorneys, the idea of having to adapt to new approaches to evidence presentation and jury selection that may come from the COVID crisis is unsettling. But it is important to remember the reason we have jury trials, and actively participate in efforts to restore them. This includes becoming familiar with the protocols being considered in your jurisdiction and becoming involved. It also involves giving it a try when the opportunity for a jury trial presents itself under whatever new protocols are in place. As with the increased use of Zoom mediations and depositions, it may be that we can come through this process with techniques for conducting jury trials that even better serve the litigant and jurors.

For those who want to hear more on this topic, I would recommend an upcoming webinar entitled “Jury Trials in the Age of Pandemics.” It is sponsored by the American Board of Trial Advocates and will be held on July 21st, 10:00 a.m. to 3:00 p.m. CST. ABOTA has also published a white paper that was referenced in a post last month by Michelle Prud’Homme, entitled Guidance for Conducting Civil Jury Trials During the COVID-19 Pandemic. This paper is the product of a task force assembled to provide information and guidance surrounding the challenges of reopening of our courts to jury trials.