Fred Thompson, Former Senator, Save Our Juries Supporter, Passes Away

Fred Thompson, former Senator, actor and Save Our Juries supporter, passed away on Sunday, Nov. 1. His public service will be missed, including all of his efforts for Save Our Juries to educate the public about the history and importance of the 7th Amendment. Mr. Thompson was unwavering in his support to protect and preserve our 7th Amendment right to a civil jury trial. It is testimony to the impact that he has had that Save Our Juries will continue stronger because of his contributions.

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Read More About Mr. Thompson’s Life

Another Response to “The Uncivil Jury”

Last week, washingtonpost.com published a series of 5 articles written by By Prof. Renee Lettow Lerner on “the uncivil jury.”  The fifth installment–The uncivil jury, part 5: What to do now — repeal and redesign advocates “repealing constitutional rights to civil jury trial, including the Seventh Amendment, and reforming adjudication by judges.”

In reponse to Professor Lettow Lerner’s propositions:

“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties”
~ Abraham Lincoln, August 27, 1856

“Don’t it always seem to go that you don’t know what you’ve got ’till it’s gone.
~ Joni Mitchell, 1970

“The simplest and best thing to do is to repeal the state and federal constitutional provisions requiring the civil jury.” This ultimate conclusion to Professor Lerner’s polemic sounds hauntingly reminiscent of the words of anarchist Dick the Butcher in Shakespeare’s Henry The Sixth: “The first thing we do, let’s kill all the lawyers.” As Justice John Paul Stevens once noted about that frequently misunderstood statement, “a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.” Walters v. National Ass’n of Radiation Survivors (1985) 473 U.S. 305, 371, n.24. Eliminating the constitutional guarantee of a jury trial in civil actions would be another step in that direction as well.

It isn’t every day that one hears someone advocating for repeal of a constitutional right (in the United States anyway), but Professor Lerner essentially argues that we might as well repeal the right to a civil jury trial because we have “in effect done it already.”  Actually, we haven’t. The declining number of civil jury trials, as a percentage of cases filed, is only a reflection of the escalating cost of going to trial, the increasing scarcity of judicial resources, and other factors over which litigants have no control. It is in no way a barometer of ordinary citizens’ desire to retain their right to a jury trial. Nor is it in any way a measure of the jury trial’s significance to the civil justice system. In the real world, parties to civil litigation rarely waive their right to a jury trial voluntarily, and when they sometimes inadvertently do so, they are quick to seek relief.

Talk to lawyers who represent clients in civil litigation, from either side of the courtroom— plaintiff or defense—and ask how many of their clients are willing to waive their right to a jury trial before knowing the judge to whom they have been randomly assigned. Very few on either side are willing to do so even after knowing who the judge is. And while the percentage of cases actually tried has dropped dramatically, the number of parties going on the record as demanding a jury trial, when failure to do so will result in a waiver, is probably close to 100%. Why?  Because people who are unfortunate enough to be involved in a civil action want to do everything they can to preserve their right to a jury should alternative dispute resolution not succeed.

Of course, repeal of a constitutional amendment is not without precedent. The 18thAmendment was repealed in 1933. However, unlike the notoriously misguided attempt to legislate consumption of alcohol, the fundamental guarantee of a trial by jury lies at the heart of our civil justice system. It has been with us for centuries, and is not confined to the 7thAmendment to the federal constitution. It has been independently adopted and incorporated into the constitutions of almost every state, and the few that have not done so have enacted statutory provisions recognizing the right to a civil jury trial.

Professor Lerner says she supports “lay participation in serious criminal cases,” but “private disputes are another matter.”  Yet the only distinction she draws between the two is that “[c]oncerns about limiting the government or providing community representation are not as strong in private disputes.” She offers no elaboration or reasoning beyond these conclusory statements. However, those involved in the civil justice system, including parties to civil disputes, would vehemently disagree with her. Not all civil disputes involve minor injuries to person and property. In many instances, people’s lives and livelihoods are at stake, as is the continued viability of businesses small and large. And many times one of the parties is a government entity.

It’s easy to understand why she would attempt to distinguish the criminal from civil juries, as virtually all of Professor Lerner’s arguments for doing away with the civil jury trial could be applied to other constitutional rights. Why not do away with jury trials in criminal cases because of the prevalence of plea bargaining?  Why “block proper development of adjudication by judges” in criminal cases? Certainly there are more efficient methods of dispensing justice in criminal cases than to burden judges with lengthy voir dire and jury selection. And certainly a judge or group of judges is better suited to adjudication of fact issues involving complex expert testimony on issues such as DNA analysis and criminal forensics.

While we are at it, shouldn’t we also think about repealing some of those other pesky amendments that slow the wheels of justice to a crawl and hamper the development of adjudication by judges? For example, cases are rarely dismissed these days due to preclusion of evidence from warrantless searches. Do we really need the 4th Amendment being applied to criminal prosecutions? The same is true of coerced confessions and the 5th Amendment. Aren’t there enough protections built into the modern system of justice? After all, this is not the 18thcentury anymore. And certainly with today’s modern sentencing guidelines, judges can be trusted to avoid imposing any cruel or unusual punishment. Do we really need the equal protection clauses of the 14th amendment? Hasn’t enough time gone by where our society can trust our government to make sure everyone is treated fairly and equally?

Perhaps her suggestion to do away with the civil jury trial is merely tongue-in-cheek, and is simply meant to be a provocative means of stimulating discussion about the increasingly diminishing use of the jury trial in civil cases. But assuming she is serious, Professor Lerner’s thesis seems to be throw out the baby with the bathwater. In the final analysis, she is correct that the use of the jury trial has severely declined, and that alternative means have been successfully employed by litigants to resolve their disputes. But this has been by necessity, and is symptomatic of problems with the civil justice system effectively denying a basic constitutional guarantee. Alternative measures and infrequency of use are simply not valid rationales for abandoning the fundamental right to a trial by jury in civil cases, any more than they are for extinguishing any of the other rights guaranteed by our state and federal constitutions.

A Response to “The Uncivil Jury”

Last week, washingtonpost.com published a series of 5 articles written by By Prof. Renee Lettow Lerner on “the uncivil jury.”  The first installment–The uncivil jury, part 1: Americans’ misplaced sentiment about the civil jury addresses a “misplaced” loyalty in the American jury system, judge’s dislike in presiding over civil jury trials, the allure of arbirtation, and the necessity to find alternative methods for dispute resolution.

In reponse to Professor Lettow Lerner’s Seventh Amendment positions:

The civil jury system is a trademark of democracy and an important defense of freedom. Civil juries are the conscience and the voice of communities—crucial safeguards over dishonesty, corruption and neglect. With the exception of military service, juries are the one arena where average citizens can participate directly in government and democracy and have an impact on the future.

When a right is exercised or invoked less frequently due to social and economic forces, should we follow the trend downward, take the path of least resistance, find an alternative, and eliminate the right altogether? England, Australia, New Zealand, and Canada prohibit jury trial, and hold bench trials in almost all civil cases; these countries found bench trials to be much more efficient and “were not hampered by constitutional rights to jury trial.”

What if we applied such logic to the rest of the Bill of Rights? Wouldn’t criminal prosecutions be much more efficient if law enforcement were not hampered by the Fourth Amendment? Wouldn’t it be much easier for the government to discourage dissent if only it were not hindered by the First Amendment?

“Judges don’t like presiding over civil jury trials.”  Not all judges, however, share this sentiment.

  • Former Supreme Court chief justice William Rehnquist once noted, “The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a ‘safeguard too precious to be left to the whim of the sovereign.’”
  • Jeffrey Colbath, chief judge of the 15th Judicial Circuit recently wrote, “Our jury system is the foundation of our democracy. Our parents, grandparents, and great-grandparents — all the way back nearly 239 years to the birth of our great nation—have been called to courthouses in every county and state across our country to serve as jurors. Without the jury system, disputes would still get resolved. But we might not like the method that could evolve, for example, bureaucrats, behind closed doors, making decisions subject to personal agendas, subject to suspicion, subject to abuse.”
  • Retired Superior Court Judge Michael I. Jeffery penned, “I have seen the great dedication of jurors, examining the issues for a considerable time and staying into the night if they feel it is necessary. When the jury’s decision is announced, one can see how the citizens have carefully evaluated all the information they received and how they have reached a reasonable result based on the facts and the law. When this happens, our 800-year-old principles still shine brightly today.”

Let’s assume for the sake of argument that judges are not content with jury trials—is that really a reason to eliminate this fundamental constitutional protection? Some judges may not be fond of defendants who invoke their right against compulsory, testimonial self-incrimination, but does that mean should we reconsider the Fifth Amendment and search for alternative means to obtain testimony from criminal defendants?

Infringing on constitutional protections because they are not popular with some judges is a lot like raising blood alcohol limits because they are not popular with drunk drivers.  It sounds like a quick fix, but it’s a patently erroneous solution to a significant problem.

Save Our Juries Co-Chairs

Mark P. Robinson, Jr.
Gilbert A. Dickinson
Lewis R. Sifford
Steven D. Susman
Harry T. Widmann

The Council for Court Excellence Jury Project

Save Our Juries supports CCE in their efforts improve the administration of justice in the local and federal courts. We share a vision to raise awareness of the justice system and the civil jury trial as a treasured institution that upholds and protects the democratic principles on which our country was founded.

The jury system is deeply connected to our Constitution; yet the number of jury trials has been dwindling in recent years, and many members of the public have a less-than-positive perception of jury service. Although this is a national problem, with national implications, it is also a local issue, and there is much that can be done locally to create the conditions for change.

The Council for Court Excellence (CCE) is a non-partisan, non-profit organization that is focused on improving the administration of justice in the District of Columbia that has been working on improving jury service in Washington, DC for nearly 30 years. Our latest effort is a comprehensive examination of the way jury service works and can be improved in this community. The CCE Jury Project mirrors the organization in that the project committee consists of representatives from the plaintiff and defense bars and law firms large and small. We have representatives from prosecuting agencies as well as the defender services. The committee also has members who are jury consultants, academics, business leaders, judges, and former jurors. Our project has two co-chairs: Judge Ketanji Brown Jackson of the US District Court for the District of Columbia and Irvin Nathan, the former Attorney General of the District of Columbia.

CCE’s Jury Project is still finalizing its recommendations, with a goal of publishing them in June, but in this post we would like to share a few of our ideas with the supporters of Save Our Juries. The project committee is subdivided into three working groups, so we will explain our ideas here in a similar manner, by highlighting just one possible recommendation from each group.

The juror care working group aims to improve the overall experience of jury service. For example, while the DC courts provide jurors with lounges, wifi, childcare, and a business center, many prospective jurors are unaware of these amenities. One possible recommendation is that the jury summons be redesigned to provide more information up front about what to expect in general, about the process of jury selection, and about available amenities both inside the courthouse and the surrounding areas. This would not only make service more inviting from the very start, it would also prepare people to make the most of their experience.

The jury pool and summoning working group is focusing on the summoning response rate and process. This group has determined that employer jury service policies are one of the greatest factors influencing whether or not a citizen will respond to the call for service. To that end, CCE is exploring the idea of “Civic Leave”—i.e., dedicated time off that an employee may take for jury service and voting. Civic Leave makes explicit the constitutional and civic nature of jury service, equates jury service with voting as an important democratic act, and re-brands and improves the perception of jury service. CCE is considering drafting a model civic leave policy, and believes that get-out-the-vote organizations, courts, and employers will be eager to participate.

The trial structure working group is examining voir dire procedures and social media use, and is also researching innovative techniques that can be employed by judges to better engage jurors.  Because there is a growing body of research that suggests that allowing jurors to ask questions keeps them more engaged in the trial, allows them to combat false narratives they may have mentally constructed, and improves their understanding of the evidence, one recommendation that this group is considering is encouraging judges to allow jurors to ask fact questions of witnesses in civil trials. Although CCE’s upcoming recommendations are focused on improving juror service in the District of Columbia, they are likely to be broadly applicable and thus may hold promise for nationwide reform. CCE plans to release its jury project report in June in conjunction with an outreach campaign and associated implementation efforts. If you would like to learn more, have ideas, or think you may be a good partner in CCE’s efforts, please reach out.

Zach Zarnow, Jury Project Manager, Council for Court Excellence

More Common Sense, Better Justice  

I meet with my jurors after every trial. Without fail, they mention that being a juror is not an easy task, but they still always find the experience rewarding.

We throw a lot at our jurors: unpolished witnesses, stacks of unreadable exhibits, long winded speaking objections, a lot of waiting around while the lawyers argue points of law, and finally, page after page of jury instructions which often make simple legal concepts overly complicated.   And even when civil jury trials are poorly presented, jurors listen carefully to the evidence, use their common sense, and follow the Court’s instructions of law to the best of their ability.

There is a lot of talk these days about the vanishing civil jury trial. Although our concern may partially be due to our reminiscing over the “good old days,” the fact is, civil jury trial numbers don’t lie. Civil jury trials are down. However, I disagree with people who attribute the decrease in civil jury trials to judges not wanting to go to trial. To the contrary, I often hear my colleagues complain that they are not getting enough jury trials. Trying cases is why many of us joined the bench.

Maybe civil jury trials have become too expensive, or maybe being bombarded with arbitration clauses in every commercial contract has finally taken its toll. But after being involved in hundreds of jury trials as a trial lawyer and state District Court Judge, I am firmly convinced that when you put six or twelve jurors in a room and ask them to deliberate, the quality of the verdict is better than when the case is decided by a judge or an arbitrator.

Let’s face it, even judges can fall into the trap of taking the easy way out. After hearing contested cases all day, judges, like everyone, often want to avoid conflict or maybe they are just concerned about appearing fair. Regardless, sometimes it is easier for a judge to “split the baby” with their verdict even in cases where there should be a clear winner and a clear loser. But civil juries are different. Jurors may only be involved in one or two trials in their life. They are not jaded or concerned about re-election. Jurors bring a collective sense of purpose to the courtroom and exude common sense. Moreover, jurors often view the trial from a fresher and more complete perspective than a jurist. The result, in my opinion, is better justice.

We all need to do our part in protecting our constitutional right to the civil jury trial. I recently changed my case management order to encourage parties to try more civil jury trials in my courtroom. In the past, I required mandatory settlement conferences or some other form of alternative dispute resolution with all jury trials. I now only require alternative dispute resolution when a jury trial is set for more than three days. By this change, I am attempting to minimize the cost of getting to jury trial in my courtroom when the parties handle their case in the most efficient manner.   Let’s Save Our Juries.

Richard B. Caschette
District Court Judge, 18th Judicial District, State of Colorado

GM, Discovery, and Juries: How Things Can Get Even Worse for Consumers and Employees

by Professor Suja A. Thomas

As has been widely reported, for a decade General Motors knew about an ignition problem in its cars that could turn off the engine and disable power steering and air bags. However, it issued a recall only last year.

The recall stemmed from a lawsuit by the family of Brooke Melton, a woman who died in a crash of a GM Cobalt. Only after information about the ignition problem surfaced did GM take steps after years of inaction resulting in consumers’ injury and death. If GM has its way, in the future, GM and other defendants in products liability cases will not be forced to give up information like this but instead will decide on their own what information plaintiffs who sue will receive, which will result in even fewer civil jury trials than occur now.

The Melton lawsuit and related investigations required GM to disclose documents that showed internal inquiries and a significant change to the ignition switch demonstrating GM knew about the problem many years ago. Without these disclosures, the recalled cars very well may be on the road today.

When a lawsuit is brought, the parties search for and exchange relevant information. In the federal courts where large corporations tend to prefer to litigate, GM, Ford, GE, Pfizer, Exxon, and Microsoft, among others, have pressed to change the rules governing this process. They or organizations representing their interests testified before a federal committee in favor of a rule that permits them to decide not to search or produce relevant documents that they deem not “proportional” to “the needs of the case.” In other words, even if documents are relevant, the companies think that they should be able to withhold information in lawsuits simply for example because they consider the burden to them of producing the information to be greater than the benefit to the plaintiff of receiving the information.

Under the proposal being pushed by these large companies, they would have no obligation to let plaintiffs know what information ­ or “discovery” as it is called in the rules ­ has been withheld. Without knowing this, plaintiffs like the family of Brooke Melton will have little ability to challenge big companies when they improperly keep important documents from them. Currently, many cases are dismissed before trial through a procedure referred to as summary judgment. For example, federal judges dismiss over 70% of employment discrimination cases on summary judgment. Under the proposed rule, without relevant information, courts are even more likely to dismiss these cases and other cases similar to the Melton case before trial. Also, if cases are not dismissed before trial and end up before a jury, the cases will continue to be more difficult to win without relevant information.

This new proposed rule contrasts with the rule that is in place. Currently, companies can refuse to produce relevant information only if it falls under a recognized evidentiary privilege such as a communication between a lawyer and the client. The defendant must further provide a detailed account of any documents it withholds helping the plaintiff determine whether the defendant is abusing the rule.

The proposed change has been initiated because companies have proclaimed that costs in litigation are too high. However, repeated studies by the Federal Judicial Center, an agency of the federal judicial system, shows costs for most cases are proportional to the stakes in those cases. In half of the cases, plaintiffs and defendants respectively spend less than $15,000 and $20,000 on producing information in discovery, and in 95% of the cases, costs for plaintiffs and defendants are equal to or less than $280,000 and $300,000.

The proposals come from a federal advisory committee, appointed by the Chief Justice of the United States, whose members largely represent or have represented corporations for significant periods of their careers and/or have worked on complex cases–what I have called “atypical” or “oddball” cases–not typical cases in which discovery is proportional. Those representing the interests of plaintiffs and corporations have been hugely divided on whether this change and other similar changes should be approved. In the public comment period, over 2000 comments were submitted, more than six times the number of comments than were submitted in the past. Despite the cost study and the debate over the change, the committee approved the proposed changes. The proposed rule change could be adopted soon unless Congress acts.

If the rule is changed, corporations will be able to decide what information they produce in cases, including in ones alleging serious bodily injury and death. This rule will ultimately result in judges dismissing more cases, and juries not deciding them.

Professor Suja A. Thomas (University of Illinois College of Law) testified regarding the proposed changes before the Advisory Committee on the Civil Rules.  She is working on a forthcoming book, The Other Branch, Restoring the Jury’s Role in the American Constitution (Cambridge University Press).

Locking the Courthouse Doors in Georgia

By Harry T. Widmann

In 1776 denial of the right to trial by jury in civil cases was one of the colonists’ grievances against the King of England that provoked the Declaration of Independence and triggered our Revolutionary War. In 1787 this right to a civil jury trial was so highly valued that it was guaranteed by the 7th Amendment to our Constitution.

The civil jury trial is an integral part of our unique American democracy. Citizen jurors directly provide justice to their fellow citizens in open court. They also serve as a check and balance on the power of the judiciary.

The right to a civil jury trial is a precious right which Americans have treasured and utilized throughout our history.

Now, in Georgia, a legislator has introduced a bill that would eradicate jury trials in medical malpractice cases. In fact, this bill would remove medical malpractice cases from the courts system entirely and entrust them to bureaucrats. Administrative hearings would replace open trials where verdicts are rendered by citizen juries.

The proposed legislation very likely violates Georgia’s constitutional guaranty of civil jury trials, and, quite simply, is un-American. Proponents of the bill argue that it would reduce so called “defensive medicine” practices where doctors allegedly order unnecessary medical tests to protect themselves from lawsuits.

This makes no sense. Nationwide physicians prevail in at least 75% of jury trials on medical malpractice cases, yet defensive medicine supposedly persists unabated. Are the proponents suggesting that turning these cases over to bureaucrats would stack the deck in favor of physicians to such a degree that they would abandon defensive medicine? Would the proponents pervert justice to avoid the risk of a fair trial? Surely sounder minds will prevail to preserve the precious right to a civil jury trial and not sacrifice it at the altar of tortured logic.