March 17, 2005

Jury Duty

by Nick Morgan

I have just completed my first jury service, where we returned a special verdict for the defense in Rahmanian v. Stanley Steemer, a personal injury lawsuit in California Superior Court.

The experience was superbly enlightening. Law students should eagerly jump at the chance. There's lots to say, but I'll just offer two quick thoughts.

First, I'll suggest an easier pill to swallow than full scale tort reform: all high school ciricula ought to include a unit on how to properly reason as a juror. Understandably, many of my fellow jurors were new to the process of analyzing legal elements independently of one another--many lumped together all sorts of facts to support a generalized conclusion of fairness, not a conclusion whether one particular legal element had been satisfied. Another problem--one that I imagine commonly afflicts juries--was the jury's comfort level reasoning within the burden of proof standard. Some assumed that defense had an equal burden to disprove certain allegations, others simply decided factual questions according to their ordinary judgment without weighing likelihoods. Intimate familiarity with elements of a cause of action and with the meaning of differing burdens of proof early in education might set juries more firmly on track.

Second, I'd be interested to see states experiment by making all civil verdicts presumptively special verdicts (requiring jurors to answer yes or no to particular questions about the facts or "quasi-facts" like reasonableness), where general verdicts would be allowed by party stipulation. I have very little confidence that juries will rigorously and correctly interpret the legal instructions they are given when they are only asked to determine a winner. Instructions for our two-day trial about one isolated, simple incident and one negligence cause of action were many pages long and contained extended guidance on evidentiary matters and a fairly complicated outline of negligence and its relevant defenses. I don't recall any other jurors besides me referencing these instructions, and generally speaking the other jurors didn't seem that concerned with the precise nature of the law bearing on our case.

In the end, I believe we reached the correct result given the evidence presented to us, and I was pleasantly surprised to find that all my fellow jurors were open-minded, reasonable, and dedicated to doing the job well.

March 17, 2005 07:31 PM | TrackBack

If I could concur I would. Unfortunately, I can't. "Intimate familiarity with elements of a cause of action and with the meaning of differing burdens of proof early in education might set juries more firmly on track." There is no way to make anyone familiar with elements of a claim, when the elements themselves are not solid logical concepts. For instance, causation, which we call an element in most personal injury suits, is about as amorphous as you can get. Another great example is the ever-necessary intent in a criminal case. How do you prove intent? What is it? We know it when we see it, and the courts require evidence to support a commonsense finding. But really it is impossible to say what is intent.

Furthermore, and much more importantly, it is the job of the jury to decide (1) what the facts are, not necessarily to decide what happened; and (2) whether the facts the way they find them make out the claim or defense. This all made much more sense in before and during the confederation period when juries found the facts and the law, but today it's hard to grasp I know. Nevertheless, as long as we have juries, which I would strongly support keeping, we must recognize that what they do is take the executive power of a state or national government and apply it in their judgment to a case before them. In this way, they must and should have great discretion, and if anything this is what we should be teaching citizens.

Don't get me wrong, I'm not for widespread nullfication, or whatever you call it, although I see absolutely no good argument against it in criminal cases -- assuming you believe in juries in the first place. In most civil cases there is much more at stake with regard to economic ordering and it would be a mistake to eliminate procedural devices that control the direction of the application of law to facts such as summary judgment or the directed verdict / JNOV.

Posted by: Simlicissimus at March 17, 2005 11:31 PM

As I recall, you are a law student. Were the attorneys aware of this when the jury was empanelled? Was there a voir dire, and if so, were questions raised concerning your legal background? Were you the foreperson? Were the other jurors aware that you are a law student? Did you try to explain to the other jurors what the law is and what the judge's instructions meant? Was there any resentment on the part of any of the other jurors with your legal background? Did the jurors talk about the performances of the attorneys in the case? If you become a litigator, what lessons from this jury service would be most valuable to you?

Posted by: Shag from Brookline at March 18, 2005 06:59 AM

Simlicissimus: I meant familiarity with the general structure of legal elements, not any particular one, and vagueness is obviously not so much a problem that it prevents students, lawyers, and judges from applying rules and principles to concrete situations; so broadly educating the citizenry is far from a lost cause. Also, my second point was only supposed to apply to jury verdicts, not decisions by the judge like directed verdict and JNOV.

Shag: yes, yes, yes, yes, yes, when appropriate, no, a little bit, and perhaps the most valuable lesson is that jurors, by the time they get to deliberations, often don't distinguish in their memories between evidence on the one hand and what attorneys say on the other hand as much as we might like to think.

Posted by: Nick Morgan at March 18, 2005 09:16 AM

I'm intrigued by the "valuable lesson" learned. There seems to be a suggestion that jurors may not follow an instruction to the effect that statements by the attorneys do not constitute evidence, which in turn might suggest that an attorney should made an effort to say things that perhaps are not well supported by the evidence that will benefit her client. Of course an opposing attorney can object to such an effort, but sometimes it can be quite subtly and effectively be done. The opposing attorney must be very alert with some opponents. But too many objections may create its own problem.

Posted by: Shag from Brookline at March 18, 2005 11:53 AM
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