The $38 Quadrillion Question: Do We Need Juries?
From the great Walter Olson's Overlawyered site, comes news that a Las Vegas man is suing a local attorney for $38 quadrillion dollars -- a sum that apparently exceeds all the money in the world. Admittedly, this is an extreme example, but trial lawyers routinely make outrageous demands in the hope that they can manipulate a jury to agree with them.
I'm all for tort reform, but I think we need something more radical: let's abolish the civil jury. We'll keep the jury for criminal cases (and possibly for defamation cases which depend on community standards), but for all other cases we'll stick with judges. This is the system that virtually every other English speaking country has adopted, without noticeable injustice and without lawyers being tempted to sue for McDonald's coffee burns. I know, we'll need a constitutional amendment, which makes it difficult, but it's still the right thing to do.
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Re: The $38 Quadrillion Question: Do We Need Juries?
Adam, I read this after completing an all night drive to Washington DC, so my thinking will be more muddled than usual (proximity to the Beltway and all that), but wouldn't this be a classic argument in favor of "loser pays" rules? And pays big time? Going back for more coffee now...
Aug '10
Re: The $38 Quadrillion Question: Do We Need Juries?
Excellent idea, Adam. But the jury system also must be reformed. Too often jurors - and it only takes one in murder cases - become overwhelmed, burnt out by the process, and they break down.
The available jury pool is overloaded with people who are not up to the task. Truly bright, productive, and mature individuals who understand how the world really works often must find ways to avoid service. They don't have the luxury of being able to spend months hearing and adjudicating a court case.
We need professional jurors who have been tested and screened for intelligence, wisdom, and mental balance. It should be a full-time professional occupation.
Re: The $38 Quadrillion Question: Do We Need Juries?
Dave, yes, "loser pays" is another necessary reform. Under this system, the losing party in a lawsuit pays the other party's legal fees. Again, most civilized countries already have this in place.
River: fascinating idea, I've never thought of professional jurors before. Here's my initial concern: since it would be impossible (I think) to keep the identity of the professional jurors secret, they would be subjected to relentless lobbying and pressure tactics (indeed, it might be hard to keep politics out of the process of hiring a juror: politicians will want to know how sympathetic the juror is to claims of police brutality, etc).
Aug '10
Re: The $38 Quadrillion Question: Do We Need Juries?
No, no, no, no. In a decade and a half of practicing law, specifically civil defense litigation, I have been lead counsel in 40 jury trials and countless cases tried before judges only. In my experience, rarely do the judges do the right thing and rarely do the juries do the wrong thing.
The presupposition underlying the argument to abolish juries is that somehow judges don't have the same prejudices, inclinations and general nit-wittery that jurors have. That is clearly not the case. A cross section of community members serving as jurors usually results in a collective level of common sense.
Keep in mind, the rare, big and outrageous verdicts are the ones that make the news. The vastly more commonplace reasonable verdicts are never mentioned. There is a calculated risk taken every time a client puts his future in the hands of twelve strangers and sometimes the verdict is not what one would like, but, more often than not, it is in the range of what folks expect.
Aug '10
Re: The $38 Quadrillion Question: Do We Need Juries?
Excellent point, Adam. It probably wouldn't be possible to keep jurors names secret, but every effort could be made to keep anyone from advertising their occupation - as a condition of employment. The solution would be to keep secret exactly which cases the professional jurors are adjudicating at any time. In court, the jurors would have to be screened off from the public; not a bad idea in any case.
To Red & Black: The big problem is, as you say, the big cases that make the news. They're big because they are often the landmark cases that set terrible precedents.
Jul '10
Re: The $38 Quadrillion Question: Do We Need Juries?
I'm inherently hesitant to support anything that requires amending the Constitution.
I just haven't seen any evidence that we're wiser than the Founding Fathers.
Quite the opposite, actually.
Aug '10
Re: The $38 Quadrillion Question: Do We Need Juries?
River & Adam: That sounds a lot like a Star Chamber type situation to me. And it would be one more example of our society being put further under a tyranny of experts. We are told we cannot raise our kids without expert instruction, cannot choose our foods to eat without expert instruction, cannot read the basic founding texts of our Republic without expert instruction and now we wouldn't be able to determine basic disputes but would have to leave that to a panel of expert jurors? No thanks.
Re: The $38 Quadrillion Question: Do We Need Juries?
Red & Black, I'll accept that juries reach the right conclusion on the merits about as often as judges. But surely the existence of juries inflates the amount of damages awarded, especially when lawyers are hectoring the juries to "send a message" with punitive damages. Statistically, there may not be a huge number of trials that end up in outrageous verdicts. But that's because the threat of such verdicts is how the plaintiffs bar intimidates deep pocket defendants into settling for more than a claim is worth.
Aug '10
Re: The $38 Quadrillion Question: Do We Need Juries?
I'm with Red & Black.
We already complain that judges have too much power, don't we?
From what I read of France and England, their judges are more likely than our average jury to let criminals walk "because they are victims of Society". The judges do this because they consider themselves more expert on criminality than the people who actually have to live with the criminals wandering loose on the streets. If judges allow their "expertise" to blind them on criminal matters, why not civil matters, too?
And since civil matters are more subjective, wouldn't judges get more scope to legislate from the bench? Professional jurors would feel the same temptation, to use their power to force others to conform to their personal ideals of a "just society".
By all means, come up with a system of "loser pays" that doesn't prevent the poor from suing when they have good reason (even a just case stands a small chance of being lost, and the small chance of a great loss is harder for the poor to bear -- justice shouldn't be denied the poor simply because they're poor).
Just don't replace "bad" with worse.
Aug '10
Re: The $38 Quadrillion Question: Do We Need Juries?
Kenneth: I'm inherently hesitant to support anything that requires amending the Constitution.
I just haven't seen any evidence that we're wiser than the Founding Fathers.
Quite the opposite, actually. · Aug 26 at 6:55am
I presume, Kenneth, that you're speaking the "jury of one's peers" provision. There is no such right in the Constitution. It does take up the nature of the juries, though.
In Article 3, Section 2, the Constitution requires that all criminal trials be heard by a jury, specifying that the trial will be heard in the state where a crime was committed. The 6th Amendment narrows the definition of the jury by requiring it to be "impartial." And the 7th Amendment requires that certain federal civil trials guarantee a jury trial if the amount exceeds twenty dollars.
I don't want to amend the Constitution. It's been damaged enough already, and we need to get back to strict constructionism. But a professional jury pool managed with oversight equivalent to the court system as whole would be far better than the broken system we have now.
Jul '10
Re: The $38 Quadrillion Question: Do We Need Juries?
I guess the jury system is, as Winston Churchill said about democracy, "The worst of all possible systems. Until you consider the alternatives."
Yes, juries can do damage in individual cases.
But that's nothing compared to the damage that "professional" judges have done to our body politic.
Aug '10
Re: The $38 Quadrillion Question: Do We Need Juries?
Kenneth: I'm inherently hesitant to support anything that requires amending the Constitution.
I just haven't seen any evidence that we're wiser than the Founding Fathers.
Quite the opposite, actually. · Aug 26 at 6:55am
I presume, Kenneth, that you're speaking of the "jury of one's peers" provision. There is no such right in the Constitution, but it does take up the nature of the juries.
In Article 3, Section 2, the Constitution requires that all criminal trials be heard by a jury, specifying that the trial will be heard in the state where a crime was committed. The 6th Amendment narrows the definition of the jury by requiring it to be "impartial." And the 7th Amendment requires that certain federal civil trials guarantee a jury trial if the amount exceeds twenty dollars.
I don't want to amend the Constitution. It's been damaged enough already, and we need to get back to strict constructionism. But a professional jury pool managed with oversight equivalent to the court system as whole would be far better than the broken system we have.
May '10
Re: The $38 Quadrillion Question: Do We Need Juries?
I totally agree with Adam that the bad juries of those black hole jurisdictions in Illinois, Mississippi (particularly prior to their tort reform), and parts of Texas are horrific enough that it is tempting to go to the root of the problem and cut off their heads. However, I worry about unintended consequences; I would like to see other reforms tried first.
What is our basic nightmare? Scummy, unprincipled attorneys who chase ambulances or equivalent (today, that means advertising on TV for plaintiffs), who then select jurisdictions and venues where they can manipulate the system.
Can thgis be addressed in less drastic ways? Sure- but every time you try, the plaintiffs' bar's acolytes in Washington (i.e., bought-off Dems) block all beneficial changes. How, under the circumstances, if we can't get expert malpractice panels included in the ObamaCare bill, could we get 2/3 to vote for a Constitutional amendment?
This needs a different approach- a full-scale, head-on assault on damages awards, that is, a PR campaign to explain and remove the carrot that drives these bums: punitive damages and other consequential damage elements that don't compensate the victims, only incentivize the greedy barristers.
May '10
Re: The $38 Quadrillion Question: Do We Need Juries?
Could we not set up specialized "juries" or panels that tackle specific parts of the case? I'm thinking specifically of the determination of facts based on scientific testimony or concerning very specialized, technical areas (like medicine, for example). I've sat on a jury that was subjected to a week of expert psychiatric witnesses who essentially contradicted one another, and we would have been glad to turn that phase over to a panel of experts who were answerable to us, the jury, for a determination of the facts.
In a similar way, determination of the appropriate damages could be turned over to specialized panels, leaving the jury to determine guilt or innocence.
Edited on Aug 26, 2010 at 4:20pmRe: The $38 Quadrillion Question: Do We Need Juries?
Just such a proposal was advanced back in 1939 by then-Yale Law professor Fred Rodell in his gadfly classic Woe Unto You, Lawyers! Rodell advocated replacing the entire judiciary with a system of arbitration before specialist panels. As Rodell put it:
In theory I like it. But if you think getting rid of juries would be tough, try getting rid of the judiciary!
May '10
Re: The $38 Quadrillion Question: Do We Need Juries?
A benefit of semi-randomly selecting jurors is that you're likely to end up with a variety of perspectives -- not just variety in education and experience, but also in styles of thinking. I expect professional jurors would gradually become homogenized and some of that variety would be lost. Perhaps a mix of professional and non-professional jurors would be better.
If we're stuck (good or bad) with non-professional jurors, should there be changes to the influence lawyers have over selecting jurors?
A prosecutor once screened my dad by asking if he was an electrician. My dad answered that he wasn't, and so he was let onto the jury. Had the prosecutor asked about experience, rather than profession, he would have known that my dad was once an electrician for the Navy. That knowledge, which the lawyer knowingly attempted to exclude, ended up saving the defense.
I often wondered whether it would be wise to wave my right to a jury, should I ever need one. A trial lawyer from north Texas once told me that jury trials are often won more on which lawyer the jury likes than on the facts.
Aug '10
Re: The $38 Quadrillion Question: Do We Need Juries?
There's another reason to have ordinary citizens sit as jurors, even for civil cases: being a juror is a lesson in civics. Civil trials make up a goodly portion of jury-duty opportunities.
Furthermore, even civil law should strive to remain transparent enough that ordinary citizens -- jurors -- can understand it.
When our laws get so opaque that only experts can understand them, we have a problem. How will ordinary people even know how to obey the law, then? Or even know whether they are obeying the law?
Our laws are supposed to be for the people, not for the experts. Insisting on jury trials as often as possible is one way to keep law transparent to ordinary citizens.
May '10
Re: The $38 Quadrillion Question: Do We Need Juries?
Adam Freedman
Just such a proposal was advanced back in 1939 by then-Yale Law professor Fred Rodell in his gadfly classic Woe Unto You, Lawyers! Rodell advocated replacing the entire judiciary with a system of arbitration before specialist panels.
In theory I like it. But if you think getting rid of juries would be tough, try getting rid of the judiciary! · Aug 26 at 11:48am
Which is why I suggested that the specialist panels only determine the facts as related to their specialties. Leave the questions of law and guilt to the judge and jury as now.
In my case we (the jury) ended up ignoring all the psychiatric testimony as irrelevant, and decided on the basis of the law and the undisputed facts, The expert testimony was intended to confuse us and play on our emotions, in our opinion.
Jul '10
Re: The $38 Quadrillion Question: Do We Need Juries?
Think about this: Wait until those millions of illegal aliens, who have no knowledge of or respect for Our laws and customs, are given citizenship and then summoned to serve as jurors. Then it's over.
Re: The $38 Quadrillion Question: Do We Need Juries?
Midget Faded Rattlesnake: There's another reason to have ordinary citizens sit as jurors, even for civil cases: being a juror is a lesson in civics. Civil trials make up a goodly portion of jury-duty opportunities.
Furthermore, even civil law should strive to remain transparent enough that ordinary citizens -- jurors -- can understand it.
When our laws get so opaque that only experts can understand them, we have a problem. How will ordinary people even know how to obey the law, then? Or even know whether they are obeying the law?
Our laws are supposed to be for the people, not for the experts. Insisting on jury trials as often as possible is one way to keep law transparent to ordinary citizens.
One concern is that the brains of jurors are too small to handle the job. The other concern is that the hearts of jurors are too big. I'm less concerned about the lack of professional expertise among jurors than I am the propensity of jurors to rule on the basis of emotion instead of reason. ("One look at his face, I knew he deserved the full $38 quadrillion. I'd have awarded more if I could...")