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.

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