Rethinking the Need for Juries
May 23, 2019
It happened. I got the notice to serve on a jury. If you ever received a jury summons, you probably had either of these two reactions: (1) yay, I get to do something other than my normal job and get paid, or (2) this is going to be extremely inconvenient and costly. As an attorney who runs his own firm, my reaction was definitely the latter. Like most people working on a variable rate of pay, my mind raced through the gambit of plausible ways to get out of this inconvenience.
While I knew I could make up an excuse to avoid this service, I decided to do my civic duty and perform the vital role juries have in our great history of the American system of justice. I imagined hearing the evidence and determining the property, or the liberty, rights of my fellow citizens. Afterward, I would be rewarded in the knowledge that I discharged my duties faithfully, honorably and in that sense become the human embodiment for the protection of life, liberty, and pursuit of happiness afforded by the Constitution.
Not 12 Angry Men; 120 Angry Men (and Women)
So the day comes for my service and I drive down to the Cook County (Chicago) Courthouse. While I am familiar with the area and the inter-workings of the courts (particularly its congested elevators), my fellow members of the jury pool certainly are not. From not knowing: the commute, where to park, or how to get to the jury room, everyone in the jury pool has their smile turned upside down from the get-go. After passing through the admittance procedure bureaucracy, we take our place in our comfortable plastic seat. When everyone arrives, we are shown a videotape (pretty sure it was a VCR) of the legal process and what we can expect. Approximately thirty seconds into this feature, the jurors start tuning out one by one (just like at a trial).
As I look around at the potential jury members two thoughts emerge: 1) this is definitely not a fashion show, and 2) nobody wants to be here. Everyone just looks bored and angry. It is understandable. We really do ask a lot of our juries, probably way too much.
Long story short, I sat on that plastic chair from 9:00 to 4:30 (with a lunch break). I and a vast number of my fellow jurors just sat there and were never called. For most, it was simply a valuable day of their lives wasted (until we picked up our check for $17.20.)
Determined to seek some benefit from this ordeal, I kept asking myself “why the heck do we even have juries at all?” As I pondered the question, I examined the other members of the jury pool. After seven hours of deliberation, I came to an epiphany: trial by jury in this day in age is probably the dumbest thing we could do as a society to resolve legal issues. I am not sayin’, I am just sayin’.
Who Came Up With This Idea?
Blame the English! We didn’t keep the monarchy, driving on the left, or tea time, but we did acquire the right of a jury trial from the English. In the 11th century, the King assembled “free and lawful” men to resolve certain disputes. However, unlike modern juries, these people were supposed to come to court with a pre-existing knowledge of the facts. Over the next centuries, juries became more reliant on the evidence presented to them at trial.
However, the British changed the rules at the outset of the American revolution. When it came to the rebelling colonists, there were special trials that did not afford the right to a jury. You can imagine the results when a revolutionary is being tried by the government he is rebelling against. Understandably, the lack of a jury trial became a rallying cry for our founding fathers. Indeed, the Declaration of Independence assails the English for depriving colonists, among other things, of the “right to a jury trial.”
As such, it is not surprising that when the Constitution was eventually ratified, the right to a jury in criminal trials (Sixth Amendment) and civil trials (7th Amendment) became the law of the land. Significantly, blacks were basically excluded from juries until the 1960s. A woman was not afforded the ability to serve on juries until 1975! Clearly, the idea of a jury by one’s peers evolved over time. As my leg falls asleep for the fourth time, I am thinking a more radical evolution is necessary.
Let’s Face it, Juries Suck.
If, as a society, our goal was to create the most expensive, inconsistent and time-consuming process of dispute resolution ever created; the trial by jury is one giant leap in the right direction. With limited knowledge of the relevant facts, the legal process or how similar disputes were resolved, juries are uniquely unqualified to render a proper result. It is hard to argue to the contrary that the trial by jury is a pretty lousy way to determine important public policy decisions.
In fact, it’s a pretty lousy way to resolve any dispute. Allow me to provide an example. If you ever watched a football game, you are aware that the referees occasionally have independent replay reviews of certain calls in the game. Personally, the process takes an excruciating amount of time, but at least it’s being performed by someone who knows the game, its procedures and its precedents. While not always correct, the replay official is an expert at the game; therefore, his decisions carry a certain measure of gravitas.
Now, imagine if the rights of the players were adjudicated by a jury. Lawyers would have to explain the game of football to people who, by definition, do not know the rules of the game. The jury would then have to learn the entire replay-review procedure anew. The judge would have to instruct them as to the legal basis for overturning the call on the field. After the lawyers argued over the proper jury instructions, the judge would advise the members of the jury: “If you find that there is incontrovertible evidence to the contrary, you must find that there is no catch. If you find the receiver maintained control of the ball throughout the course of the play, you must find that the call on the field is affirmed.” Juror: “Your honor, what does 'incontrovertible' mean, and what is a 'catch'?”
If juries were used to resolve disputes on a football field, it would take so long that we would all put down our bean dip and never watch another game again. Agreed? Yet, we have juries decide important all of our important legal issues, including those involving the business of football. Indeed, one jury determined that the NFL’s system of free agency violated the antitrust regulations. Another jury found that the NFL willfully violated the antitrust rules in dealing with a competing football league (USFL) (but somehow only awarded $1 when the alleged damages were 1.6 billion). Just as we would not have it decide an NFL play, a jury should not decide whether the NFL violates anti-competition law (or anything else for that matter).
As I returned from lunch and look at the ever-slowing clock, I came to three damning conclusions as to the use of juries: (1) Juries are not that bright, (2) Juries make court cases too expensive, and (3) We are wasting some great brain power on this jury-focused method of dispute resolution.
Not You, We Do Not Want Intelligent People Deciding Disputes.
Having practiced law for twenty-five years, I get a lot of legal questions from really normal people. “What happens if I hit my golf ball on the street and break a window?” “Would I be liable if my son throws a party at my house when I am gone?” “How much money would I receive from if I got hit in the head with a golf ball coming home from your son's party?” I always turn the question around, and say “I do not know; people like you will serve on the jury and decide.” They are flabbergasted. They are even more so when I inform them that people like them do not decide. By and large, these matters are decided by people that do not have anything better to do.
I recognize that is a bold statement, but alas, it’s true. The people in this room certainly do not represent a cross-section of the public sufficient to constitute a jury of one’s peers. People with families, important jobs or just have better things to do than sit on a plastic chair, routinely get out of these things.
Of course, there are teachers, firemen, union workers, and employees who are wonderful people, but I think they will admit that there is probably someone better qualified to understand the law and its relation to the facts presented. They are just doing what the government told them and God loves 'em for that. However, making (below?) average citizens take a crash course in civil procedure hundreds of times a week so they can decide important matters that do not make a whole lot of sense.
Wait a minute, I am here. I am intelligent. I, and others like me, could decide these matters right? No chance. Lawyers rarely serve on cases. Trial lawyers do not want people who they can not manipulate. In fact, by design, our cases are not decided by Mensa candidates. Federal Judge Julius Miner (from my beloved Northwestern Law school) hit the nail on the head in a paper entitled “The Jury Problem.” In it, he argues that lawyers intentionally do not pick the sharpest knives in the drawer to serve on juries.
"The woeful lack of intellectual endowment on the part of a juror is no doubt the most serious difficulty of common occurrence. Such lack of endowment is… the very highest qualification a juror can possess (for the lawyer). If a prospective juror discloses intelligence and competency, he is promptly excused…”
While Judge Miner was referring to criminal cases, his analysis is equally applicable to civil cases. Indeed, as I look around this room, there is a question of whether anyone here actually knows what “endowment” means in this context. I studied complex areas of law like patent, antitrust, and torts for months and barely understood them. The members of this panel are going to learn these concepts and determine whether the facts presented violate them? And if they did, determine the amount to be awarded?
While I am not sure a lay jury could really understand whether the burden of proof is established for liability, they are completely incapable of determining the amount that should be awarded. If fact, according to the Justice Department's Bureau of Justice Statistics, the median jury verdict for the plaintiff winner in state courts was $37,000 in 2001. But in civil trial cases that were decided by judges that year, the median verdict was nearly 25 percent lower. Judges in those cases also awarded punitive damages less frequently, and smaller awards when granting punitive damages. The truth is juries can just be swayed too easily.
Case in point. My good friend just got back from three weeks of jury duty. After it was over, he told me about the case. He said it was clear from the evidence that the company was negligent in allowing a large roll of steel to fall and crush someone’s legs. However, he informed me there was very little evidence as to how much should be awarded. In fact, the only time they heard anything related to damages was in rebuttal (the plaintiff makes his closing argument, the defendant makes him and then the plaintiff has a short time to answer the defendant's closing called "rebuttal"). He said the lawyer asked for $89,000,000 without any real evidence. He told me how confused the jury was in determining damages. He said that the jury determined that after taxes and expenses he should get $85,929,717.60. One of the many problems with that is that personal injury judgments are tax fee. So the jury clearly awarded $135,000,000 without any evidentiary support and $25,800,000 more incorrectly by its own logic. The last double amputee victim got 39 million. This one gets twice that. Go figure.
Yet, this is how we do it here in America. Thanks to the jury, the lawyers walk away over 34 million for a single case. We elect and pay people to enact and enforce the laws, but the ultimate arbitrator is the underpaid and under-qualified jury? People making under $2/hour are deciding to award millions based on a closing argument? These are the folks making the important public policy decisions of the day? This is the level of thinking we are using to decide where we go as a nation of laws? Lordy.
Trial by Jury Just Costs Too Damn Much Money in the United States.
Nobody can dispute this. Wait a minute, there is one group of people who will argue to the contrary: my brothers in the law (particularly the ones with billboards and annoying ads on television). Thomas Jefferson probably made the best argument for these folks when he said: “I consider the trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its Constitution.” Just so we are clear on this, Mr. Jefferson was referring to white males with power and intellect comparable to him, not what I am looking at in this room.
Moreover, if Jefferson were able to imagine the cost implications to society of a trial by jury, he probably would have abandoned the thought. Remember, this is the guy who felt Congress was worthless “how could it be otherwise in a body to which the people send one hundred fifty lawyers whose trade is to question everything, yield nothing and talk by the hour.”
If Jefferson saw what has happened over the last 240 years, he would be pulling his hair out through his wig. For instance, in 2016, there were 1,315,561 licensed lawyers in the United States. We have less than 5% of the world’s population and over 80% of its lawyers. I do not think we need a profound legal theory to explain this phenomenon. Its pretty simple: the trial by jury generates uncertainty and legal uncertainty breeds the need for legal services.
Nowhere is the uncertainty greater than in tort cases. These are cases involving negligence such as personal injury or malpractice that are almost always decided by a jury (if it goes to trial). In 2010, the national cost of these lawsuits was over 250 billion dollars, approximately 2.2 of our GDP. The next closest country was 27 billion. Even with all the money, less than 15 cents of every dollar went to compensating the actual litigant.
Just so you know, everyone pays for this “legal tax” in the form of higher prices. Right now, 27 cents of every health care dollar goes to litigation. Yowza. Business insurance costs rise for every business and those costs are passed on to the consumer for everything. When the government gets sued for ten million because a cop messed up, we all pay for it. A mom and pop company employing ten people can get wiped out because somebody slipped. Awful cases are settled before trial because you never know what a jury will do. This ain’t right.
Moreover, when we look at it from a global perspective, the legal tax is even greater. Companies can move to other countries and avoid this tax which has a significant impact on our jobs and our economy. Say it ain’t so.
Most countries do not allow contingency fees (which give 33-40% of the jury verdict) to the lawyers. I submit that the combination of juries and the contingency fee either breed speculative cases (careful "hot coffee") or unjustly enrich attorneys with easy cases (our lucky leg victim lawyer probably got 34 million).
Not only are the costs to society incredible, but the jury trial causes every one of our millions of cases to be that much more expensive. The administration of the jury system, the cost of picking the jury, educating the jury as to the legal process, informing them of the area of law, arguing over how the jury will be instructed, all our costs that could be avoided.
There is also a cost to the actual jury members themselves. To be sure, answering the call to jury duty could seriously impact one’s finances and well being. Imagine the emotional and financial impact of sitting on a jury for 10 months. How about the threat to one’s physical safety in a case involving organized crime? The legal cost to the litigants is several thousand dollars an hour. Compare that to those doing the heavy lifting of actually deciding a case. The costs of a jury trial are astronomical even though the litigants are getting (essentially) free services from the court and the 12 people in the box.
Complex problems are rarely solved by simple solutions. However, if juries were eliminated these costs would be dramatically reduced and we would all be better off.
The Best and Brightest Doing the Worst and Darkest.
Lawyer bashing has become an art form and well, I am not that artistic. Having been around these types for going on my fourth decade, I can honestly say that most lawyers are really good people trying to do their best to play in a very challenging sandbox. Having to deal with a jury of people that do not know much about the law makes life even more challenging.
In law school, we are taught that good lawyers win their cases. For plaintiff lawyers, it’s all about getting to the jury. If they can get just enough stuff in a case where a judge does not feel comfortable throwing it out, lawyers know that a jury is so easily manipulated, it's a total crapshoot. By the way, judges are not too keen about doing the hard work involved in writing opinions throwing a case out of court. This, coupled with the unenviable prospect of being over-ruled, makes it much easier for the judge to simply “let the jury decide.” Unfortunately, the jury is the default avenue in every case.
Because of the jury trial, lawyers ultimately result in gamesmanship that has very little to do with the merits of the case. One game the jury system causes are "forum shopping". Lawyers know that a jury pool in a certain county will be more biased for their client so they file the case there. One of the worst counties for lawsuit abuse in Madison County, Illinois. After a succession of multi-million dollar verdicts, lawyers shop their injury cases to that county even if it has no connection to the case. Indeed, more residents of Texas sued in Madison than that of Illinois. A town of 24,000 now handles between ⅓ and ¼ of all asbestos-related litigation in the United States. Justice or Just us?
Another game lawyers are forced to play is the "mock jury". Lawyers know that the case will not be decided on the merits so they “try” the case in front of mock juries to see which witnesses they like or do not like. Rather than the facts or the law, lawyers test different theories of the case until they find one that will work. It's a complicated process and as a result, the jury consulting business is booming.
Another jury fooling device is the use of so-called “expert witnesses.” These guns for hire are essentially paid witnesses to convince a jury to believe whatever they say. Some of these guys are just professional knaves who are witnesses on hundreds of cases. The use of the jury trial has created a cottage industry for these folks.
Because of the jury system, lawyers also target the “deep pocket,” not the wrongdoer. Rather than blame the landlord that allowed his lead paint to deteriorate, they sue the paint manufacturer. Rather than sue the guy who shot someone, go after the gun dealers. Eventually, there will be a case when a car explodes in an accident and they blame the gas station.
The upshot of all this is that a given case is not really decided by facts or law by someone with any expertise. The theme of the case is shaped not from what is right according to law, but what the jury will buy. If we are talking about selling a product or service that is one thing, but when we are talking about our system of justice, it’s deeply troubling.
It gets worse. The whole process is even more saddening when you realize that the jury system creates an incredible brain drain. If you look at the number and quality of our young men and woman going through law school, it’s pretty easy to determine that these are some of the best and brightest minds that we have in our nation. They should be curing disease, creating jobs, solving problems, or something that creates a common good. Yet, all too many of them are out playing jury roulette with questionable slip and fall cases and dubious class action litigation. These smart people are just using their intellect so they can to get their cases to the jury and fool them once they are there. Moreover, all of these efforts are in preparation for something that almost never happens. Over 97% of cases settle before a jury trial, so the bulk of a trial lawyer's talent and skill is essentially meaningless. Imagine if this talent was directed to more constructive endeavors.
Here is the rub. By the time a lawyer learns that his talent is fussing and fighting over a jury trial that often never comes, he is in too deep. His investment in law school and to his firm is supposed to pay off handsomely. He can not decry the system from which he was supposed to benefit. On the contrary, as so often is the case, he must oppose any reforms to the system. To be sure, the plaintiff’s bar certainly has become a powerful force, channeling millions of dollars into candidates to make sure there are no reforms. The unfortunate economics of the practice of law, makes many of our future leaders consent to be knaves.
Don’t Curse the Darkness, Shine a light.
It is through contemplation (in the jury pool) where the normative principles of thought emerge. Clearly, we should endeavor to devise a system of justice where rights are determined efficiently and as accurately as possible. The reliance on a jury as the default arbitrator simply does not do that.
Yet, we continue to waste so much time energy and money on the outdated notion of a jury trial. Lawyers create so much evidence, so much argument, and so much procedural wrangling that most of these efforts go above the heads of the average juror. One comes to realize that a big chunk of the lawyer’s brilliant actions becomes meaningless when weighed through the eyes of a jury.
In science, there is a concept of significant figures which is illustrative. A scientist would not bother to measure something to the thousandth place (1.123 kg) if it was going to be divided by another object that was weighed by a scale only measured by the kilogram (1). The scientist would only use the significant number 1, not 1.123 because the remaining numbers would create a false level of certainty.
This idea is applicable to a jury trial. The brilliant minds of this legal profession investigate and analyze a given case to the 1.123 degrees only to have it weighed by something as binary as a jury. The remaining .123 is simply wasted effort and cost. The .123, however, could be significant. If we had a jury capable of weighing this amount, it would be a societal good to include it. However, given the level of analysis, it becomes wasted thought. It becomes even more so when we 97% of all the case will settle.
Our litigants spend years, at hundreds and thousands of dollars an hour on legal talent to determine rights only to have it decided by someone making less than $2 dollars an hour. Although it’s obvious, common sense and the law of significant figures makes it abundantly clear that this makes no sense.
Einstein once said, “We can not solve problems using the same kind of thinking we used when we created them.” True dat. We are going to have to radically change the way we think about resolving disputes if we want a better system of justice. Here is a solution. While I recommend that we abolish juries altogether, I understand that amending the Constitution is difficult. It’s a safe bet that our senators and congressman lack the legislative fortitude to complete this Herculean task. However, if we want the efforts of our attorneys to be significant if we want a more efficient system, and we want more consistent and just verdicts, let’s put some expertise on the jury pool.
We have 1.3 million lawyers running around. Put them on the jury at an attorney’s normal hourly rate. We will get a more significant level of justice and a lot less wasted effort. (At the very least, we won’t have to explain basic procedures like what is evidence thousands of times a week.) Moreover, cases will settle when parties have real skin in the game rather than the (basically) free efforts of our jury population. For those that don’t settle, our system of justice with be more efficient and effective. We will get to the point of resolutions quicker and with more intelligent decisions. Shouldn’t that be the goal?
At the very least, thousands of our citizens will not be forced to sit on a plastic bench for eight hours a day every week.
The Public Nuisance that is the Plaintiff’s Bar, Washington Examiner October 2, 2017
The History of the Trial By Jury, American Bar Association Division for Public Education
This is Why Juries Should Not Decide Civil Cases, Business Insider, July 3, 2014
We the Plaintiffs, Above the Law Website, 2015
Edwardsville Does Booming Business in Asbestos Suits, St. Louis Post Dispatch May 3, 2015
Madison County’s Number 1Ranking has Out of State Lawyers Cheering, Local Taxpayers Footing the Bill, Us Chamber Institute for Legal Reform, April 15, 2015