Courting Stupidity

Why smart lawyers pick dumb jurors.

Walter Olson from the January 2003 issue

(Page 4 of 4)

Jury Power

Although the litigation lobby likes to carry on as if the jury is in imminent danger of abolition, there is virtually no organized or even disorganized sentiment in this country in favor of such a drastic step. The consensus that juries are here to stay, however, should not imply that it is impossible to hold a public debate about how best to structure their role.

A legal system needs multiple lines of defense against miscarriages of justice, and historically the jury has had few rivals as a way of protecting defendants from overweening official power. But like any other part of government, a jury can pose a danger to liberty when it begins wielding government power in an affirmative way, as when it extends legal liability into new areas or inflicts arbitrary damage awards. A mechanism that works extremely well as a brake may lead to disaster when pressed into service as an accelerator.

One of the areas where juries are widely seen as having the worst difficulties is in the credible and consistent computation of damages. Given that, one reform worth considering would be to keep with the jury the decision of whether defendants are to be held liable but reserve to the judge the calculation of remedies -- just as in most criminal trials the jury resolves the defendant's guilt but the judge alone then decides on sentencing. Even better, perhaps, would be a rule by which judge and jury would separately arrive at damage numbers, and then the verdict would issue at whichever of the two numbers was lower, following the idea that a two-signature check should issue only in the amount for which both parties are willing to feel responsible.

Another set of reforms worth careful consideration would endeavor to give juries more power, rather than less, by rousing them from their artificial passivity. At present juries are subject to numerous constraints that almost seem designed to leave them vulnerable to the forensic skills of those who practice before (and on) them. Usually, for example, they are forbidden to take notes, even while everyone else in the courtroom is scribbling away; nor are they usually supposed to ask or suggest questions, a method well calculated to stifle any intellectual initiative they might show.

The legal instructions on how jurors are to resolve the case are commonly withheld until the last moment, a mode of proceeding one judge has compared with asking jurors to watch a ball game and decide who won without letting them know the rules till play is over. When the guidelines finally do arrive, the judge or his clerk has frequently cast them in legal jargon aimed at withstanding appellate review, which to lay listeners might as well be Serbo-Croatian.

Courts in Arizona and elsewhere recently have experimented with relaxing some of these constraints by letting juries take notes and pose questions to the judge. Much of the legal establishment has greeted these experiments tepidly; many who style themselves as defenders of the jury system may in fact be most comfortable with the institution when it serves as a sort of queen bee, all-powerful in theory but immobilized and force-fed in practice.

The Simpson aftermath led to renewed public calls for judges to take a firmer hand in managing trials, keep questioning on track, curb bullying of witnesses by lawyers, and so forth, which would be all to the good if it happened. It also led to long-overdue calls for reforming the jury selection system, including the abolition or curtailment of peremptory challenges and narrowing of for-cause challenges.

Why does the litigation lobby fight such reforms? Why does it carry on at such length about the jury as a representative institution, then do its best during selection to make it as unrepresentative as it knows how? Why does it endlessly compare the jury box to the ballot box, then turn away from it people it suspects of planning to vote the "wrong" way? These varied positions are not united by the goal of maximizing the power juries get to exert. On closer inspection, they can be seen to share only one common theme: They all arrange matters so as to maximize the power trial lawyers themselves get to exert. Should we be surprised?

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