The Jury On Trial


The distinguished lawyer could not restrain himself. Even in the somber pages of the American Bar Association’s Tort & Insurance Law Journal late last year, his rage blazed and fulminated. Juries, he thundered, were more and more willing to accept scanty, insufficient evidence en route to awarding unmerited damages to undeserving plaintiffs.

This regrettable trend he attributed to “a decline in personal responsibility or accountability” and “the apparent inability of jurors in general to separate their feelings of sympathy for an injured person from the facts of the case.”

His ire took ignition from a recent notorious case whose star, an eighty-one-year-old woman, based her suit on a fast-food outlet’s filling a container with excessively hot coffee. Mixing drinking (the coffee) and driving, she allowed the coffee to slop over into her lap and suffered burns that under the circumstances the jury found serious enough to merit a $2.9 million verdict, including punitive damages.

Although the lawyer bemoaned the change from thirty years ago, when such a case would never even have been filed, and from twenty years ago, when most juries wouldn’t have found the restaurant liable, in fact the issue is hardly novel.

There is some foolishness inherent in asking the ignorant to use the incomprehensible to decide the unknowable.

Trial by jury as a procedure is, or so we like to think, a cornerstone of our temple of Justice. The very concept of the jury pervades the national mind-set, covering even matters far removed from the legal system. “The jury’s still out,” we say about everything undecided or uncertain, from the quality of a new movie to the performance of a recently elected official.

Devoted to the jury we may be, but we also perceive the difficulties inherent in expecting rational, fair decisions from a random group of twelve strangers who come by compulsion to a bitter dispute, unprepared and lacking experience in evaluating evidence, let alone in applying legal principles. The woes of the jury hearing the evidence against (and for) O. J. Simpson are but the most recent, most widely publicized example.

England, the jury’s birthplace, has largely abandoned the institution, except in criminal matters and libel suits. Even the Gilbert & Sullivan one-act gem Trial by Jury hardly ever appears, now that the D’Oyly Carte opera company has vanished. The abolitionist pressure is mounting equally on this side of the Atlantic. Besides the apparent foolishness inherent in asking the ignorant to use the incomprehensible to decide the unknowable, recognition seems to be growing that jury justice is delayed, inefficient, and tinged with unfairness.

Jury trials last twice as long as evidentiary hearings before a judge. Moreover, because judges have to give written reasons for their decisions, irrational conclusions are less likely to come from bench “findings” than from a jury’s terse, anonymous verdict.

In the old days—the really old days of 1300 or so—jurors’ duties encompassed giving evidence themselves as much as hearing the testimony of others. At the dawn of the common-law court system, jurors took their places as residents of the neighborhood where the pertinent events had occurred, who were assumed to possess special knowledge of the facts and, more important, of every witness’s credibility.

Now, seven centuries on, that old model has vanished, leaving a successor so transformed that it bears only occasional marks of its distant origin, giving even those who best know it and most respect it an uncomfortable feeling about its defects. Listen to what a great advocate, Moorfield Storey, told Yale Law School students. He was speaking in 1911, but eighty-four years have not changed the issue: “Today, actions to recover damages for personal injuries choke the courts. They have increased, and are increasing, at a rate entirely out of proportion to the increase of population. … This litigation, from every point of view, is wasteful and injurious to the community. … Leading lawyers … agreed that they had never known a case where the damages had really done anything but harm.”

Moorfield Storey was what we would today call an establishment lawyer (he was president of the American Bar Association in 1896). Experienced and adroit, a participant in founding the NAACP and the Anti-Imperialist League (which sought to counter the expansionist, big-stick tendencies of turn-of-the-century America), Storey was anything but reactionary. He perceived nonetheless the inescapable difficulties that trial by jury presented. Jurors, he noted, “are required, after a long trial and moving appeals to their passions and prejudices, upon evidence which must be remembered imperfectly, and under [the judge’s] instructions on complicated questions of law at best imperfectly understood, to decide whether on the whole the plaintiff or the defendant should prevail. The real issues are obscured or forgotten, and a jury must often agree upon a verdict without really considering the vital questions upon which the rights of the parties depend.”