Authored by Curtis E.A. Karnow
A colleague of mine was discussing his efforts over the last few decades to bring the American civil jury trial system to countries in eastern Europe. The benefits of doing so were plain to him. I remarked that no other country had our system, and wondered why that was. Since the eighteenth century, there have been a few experiments involving lay decision makers—such as juries—but as of late systems have shifted in the opposite direction. England, our source of the right, has dropped civil juries for almost all civil claims. The United States is an outlier.
Certainly, there are benefits of a civil jury. The system introduces the population to the mechanisms of the justice system and therefore educates our citizens. This helps legitimize the system, both because it encourages transparency and because the jury understands that the people are, in effect, judging themselves.
Juries are useful in resolving standards of “reasonableness” where so-called “common sense” is meant to dictate the outcome. For example, negligence depends on reasonableness, and so do many other tests for liability. It is the heart of some damages calculations as well, such as for pain and suffering. The “wisdom of the crowd,” as it were, is thought to generate the best outcome, at least in the sense of ameliorating individual biases.
The jury is preferred by lawyers who are convinced of their ability to overcome the odds, to sway the jury with their rhetorical skills, the ability to project empathy, and to secure it for their client. For many trial lawyers, the skill in telling a gripping story and stirring the jury’s emotions is at the heart of what it means to be a trial lawyer and therefore is an essential part of what it means to have a trial. But as I have noted elsewhere, this emphasis on the fraught storyline runs counter to the use of a trial to secure a decision on the merits, and, as discussed below, interferes with reasonable settlement.
There is a related reason to endorse juries, based on the concerns many lawyers have that the judge will be cynical, sitting on her ninth unlawful detainer or personal injury trial, seeing the same arguments over and over again, and accordingly less likely to care about unique circumstances, and less likely to believe witnesses who are saying the same thing the judge has heard for the past fifteen years. Sometimes, a jury really is the best alternative to a judge who is perceived as biased, dull, or otherwise a bad bet for one party or the other.
Finally, some commentators tout the “accountability” juries provide. Yet, this does not mean juries are accountable, for they are far less accountable than judges; indeed, they are not accountable at all. Juries never have to explain their decisions, and nothing happens to them if they get it “wrong” under any definition of the term. “Accountability” here means the rich and powerful, as well as the poor and powerless, are subject to the law—this, as contrasted with the English King’s justice. But this has little to do with juries: it is the independence of the courts which creates that accountability, whether the courts involve a jury or judge.
Many lawyers and judges believe in the jury system as an article of faith in what is widely considered one of the unique contributions of the American legal system. It is indeed a matter of faith, and I contend, a sort of American exceptionalism. It is indeed unique, in that no other nation, even after observing our system for over 200 years, has adopted it to the extent found in this county. England, the system our jurisprudence was born from, uses it, but now only for a very few civil causes such as libel, slander, and false imprisonment. In Scotland, juries may be available for personal injury. A few similar types of civil juries are used in Australia, Ireland, Canada and New Zealand. Otherwise, the rest of the world does not use civil juries, despite the fact that many other countries share the American values of transparency in government, public participation and empowerment, fairness and equity, the rule of law, and so on.
American Journal of Trial Advocacy 