The uncivil jury, part 5: What to do now—repeal and redesign

The previous post explained how and why the civil jury died. The adversarial system as it developed in America made jury trial too long and expensive to resolve cases on a regular basis. The merger of law and equity expanded discovery and confronted juries with the kinds of cases they were never meant to decide: cases with multiple parties, claims, and complicated facts and law. Lay jurors, especially ones that have been picked over by lawyers during jury selection, have difficulty deciding these complicated disputes.

Let me be clear: I support lay participation in deciding serious criminal cases. But private disputes are another matter. If we were designing a legal system from scratch, would we entrust to a group of inexpert laypersons decisions about high-tech patent infringement, civil fraud, or product design defect, together with associated damages? Concerns about limiting the government or providing community representation are not as strong in private disputes, and should not justify the limitations of jury adjudication. These limitations include the lack of reasoned decision-making and thorough appeal.

This final post in the series looks at what we can do next. Repealing constitutional rights to civil jury trial, including the Seventh Amendment, and reforming adjudication by judges is the best option.

As I discussed in the first post, liberty as well as social order depends on having a reasonably efficient, accurate system of adjudication. Law is of little use if there's no decent way to enforce it.

Problems with Switching from Juries to Judges

Let us begin by addressing potential problems with switching from (theoretical) adjudication by juries to adjudication by judges.

Corrupt or biased judges

The most serious argument in favor of civil juries is the one explained by Alexander Hamilton and Blackstone, described in post 4: that judges might be corrupt or biased. The independence, integrity, and competence of judges in England by the middle of the 19th century encouraged the switch to bench trials there. [Conor Hanly, The Decline of Civil Jury Trial in Nineteenth-Century England, 26 J. Legal History 253, 255-59 (2005).]

In the United States, bias is indeed a danger, particularly with respect to elected judges. If judges are corrupt or biased, however, the problem needs and deserves more fundamental correction than trying to prop up the collapsing civil jury, with all its problems. Judges have many ways to wield power. To most directly address the problem, judges should be selected adequately and given proper career incentives. This might mean elimination of or strong modifications to the system of judicial elections in many states, a topic beyond the scope of this post.

But the dangers of judicial elections, though they should be addressed, need not prevent a switch to judicial decision-making on the merits. Federal judges and those of a number of states are reasonably competent and free from malignant pressures. Furthermore, even in those states with a problem, changes in procedure can be made to lessen the danger from corrupt or biased judges.

Systems that traditionally have used judges to make decisions on the merits of cases understand the danger of the biased or corrupt judge, and take steps to prevent damage. We can learn from those systems.

One of the safeguards these systems use is a panel of judges to decide important cases, rather than a single judge. These panels allow colleagues to correct a biased judge. Besides, several heads are often better than one at legal decision-making.

An argument one frequently hears from proponents of juries is that "many heads are better than one." Precisely, which is why a panel of three or five judges should be used in important cases in the first instance. A single judge is not the only alternative to a jury, as many proponents of juries assume.

Delays in decision-making

One advantage of jury trial is that at least a jury has to make a prompt decision. Deliberations can't drag on for months.

Some judges will need encouragement to keep cases moving and to make prompt decisions on the merits. These incentives might include time limits and review of performance by judicial peers and superiors.

Advantages to adjudication by judges

Freeing adjudication from jury trial would allow many important reforms, besides changing the decision-maker. Currently, much of our system of litigation is affected by the limitations of the jury.

More efficient courtroom proceedings

Court hearings would speed up considerably. There would be no need for voir dire and the rest of jury selection, instructing the jury, or rules of evidence. The law of evidence is the law of jury control. We fear that lay juries won't be able to handle properly certain kinds of evidence, and so we exclude it. (This is clear in England, which has abolished the hearsay rule in civil cases, because these are now decided by bench trial.)

Judges could come into court having reviewed written evidence from the parties and prepared to ask questions of witnesses that can get directly to the point. No juries means a more active, efficient bench.

Sequential proceedings in logical order

Judges could focus on different points in separate hearings, and address threshold questions first. If a defendant is not liable, there is no need to hear evidence about damages.

Such discontinuous proceedings are not possible with lay juries. It's not fair to ask lay jurors to keep coming back to court at different times. The jury requires trial of all issues at once, with related confusion and waste of time.

Focused, effective discovery

Such sequential proceedings should help judges to control discovery. Judges can order and be more active in guiding discovery on each point as it arises. Parties should no longer be able to inflict or threaten to inflict horrible costs on each other with little gain in knowledge of relevant facts.

Loser pays the winner's litigation costs

While we're at it, it's also high time to reconsider the anomalous American Rule. Like the rest of the world, we should move to a system in which the loser pays the winner's reasonable litigation costs. This would better vindicate legal rights and help to prevent strike suits, which are all too common in our system. A strike suit is an unmeritorious claim brought in the expectation that the defendant will settle to avoid litigation costs.

Texas has led the way by beginning to move away from the American Rule. If Texas can make this change, so can the rest of the country.

Jury trial does not necessarily prevent this change. But the lower costs associated with decisions by judges make it easier to shift costs to the loser.

Reform of expert testimony

Dueling, and confusing, party-financed and party-controlled experts are a major problem in litigation today. More active, involved judges would allow innovations in expert testimony such as the Australian system of "hot-tubbing," or concurrent testimony, that mitigate partisan bias. [link:] In Australia, judges consider this system to be appropriate only for bench trials.

Reasoned decision-making

One of the most important changes is that decisions on the merits would be accompanied by written opinions explaining facts found and application of law to facts.

Juries do not give official reasons. The requirement that judges explain their reasoning to the parties and to the public, besides being more satisfying to the litigants, acts as a safeguard in several ways. A biased or corrupt judge would have a harder time justifying a bad decision. In addition, the reasoning of the judge or judges in the first instance can be thoroughly reviewed on appeal.

Thorough appeal

A thorough appeal is a vital safeguard in legal systems that rely on judges to make decisions. Appeals in these systems are often de novo, with no presumption of correctness attaching to the decision below, and of fact as well as law.

These systems are thorough in guarding against error in decisions on the merits. Our limited appeals are a legacy of the jury system. We try to control inputs, such as what evidence the jury hears or the judge's instructions on law, but there is little control over outputs, that is, the correctness of the verdict. Judicial decisions leading to settlement, such as a decision in a dispute over discovery or the denial of a motion for summary judgment, are virtually unreviewable. The terms of settlement can almost never be reviewed on appeal.

Obstacles to reform

Given these many advantages of freedom from civil jury trial, together with the example of the rest of the world, what is blocking reform?

One of the most significant problems is Americans' continuing and misplaced sentimentality about the jury. We need to get over it, especially for private disputes. These posts are an effort to help.

Part of the American bar regards maintaining civil juries as in its economic interest. But these persons also understand that the civil jury is decaying. Their cheerleading for the jury is sounding increasingly hollow, in light of current practice. Some of them may be open to an efficient system of more certain recovery for meritorious claims.

Resistance may also come from another part of the American legal profession: judges. Judges may be reluctant to do the work of, well, judging. Deciding cases on the merits and explaining one's decisions is a serious responsibility and hard work. It's far easier to hand the case off to a jury, or to allow or force the parties to settle. Mainly for this reason (plus the benefits of sounding democratic), you hardly ever hear an American judge complain about juries. Judges say things like, "Juries try really hard"; "Jurors take their responsibility seriously"; or, my personal favorite, "Juries usually get it more or less right."

Some of these judges haven't presided over a civil jury trial in years.

American judges can learn to judge, like their counterparts in other countries. Persons living in those countries expect judging of someone who gets salary protection, wears a robe, and is called "your honor" or another prestigious equivalent.

Conclusion

In private disputes, all other countries with respectable legal systems aim for decisions by trained legal professionals, done right. That is, decisions by judges, with appropriate safeguards. Those countries now include all the other major common law countries: England, Australia, Canada, and New Zealand. How do we achieve decent civil adjudication?

One possibility is to construe the Seventh Amendment, at least, not to require jury decisions in cases involving multiple parties, claims, and complicated facts and law. These types of cases were not given to ordinary lay juries "at common law." In a future article, I'll explain this interpretation in detail.

The simplest and best thing to do is to repeal the state and federal constitutional provisions requiring the civil jury. This is not as radical as it sounds. We've in effect done it already. We virtually don't hold civil jury trials any more. But these provisions do block proper development of adjudication by judges. This is because of the way these provisions have been construed, to prevent much decision-making on the merits by anyone other than a jury.

It's time to stop treating the constitutions, particularly the federal Constitution, like sacred cows. They are laws. Every one of them has mechanisms for amendment, because the drafters recognized that change would be necessary. The federal Constitution is difficult to amend, but but there have been twenty-seven amendments, or the Bill of Rights plus seventeen. That can be done again.