|It is not hard to understand why the public dislikes jury service. People
are required to spend time resolving other people's disputes in which they have no
interest. And that is only if they are lucky and chosen for a panel. The unlucky get
shuffled back and forth to courtrooms, asked personal questions in front of others, and
then shuffled off to other courtrooms, never chosen.
We should step back and ask why we
make people do this. There may be good reasons to force jury service upon the public with
respect to criminal cases. Defendants should not be sent off to prison unless their fellow
citizens have listened carefully to the evidence and given their approval to the taking
away of the defendant's freedom. Those reasons do not exist with respect to civil cases.
Further, using jurors to decide civil disputes is extremely inefficient. First, many
civil cases are too complex for jurors and fairer decisions could be made by a skilled
judicial officer. That is why some arbitrators and retired judges are in high demand. Many
lawyers would rather have a skilled jurist decide their case than 12 people of uneven
educational background unfamiliar with the concepts at issue. Unless, of court, the lawyer
is hoping to win on confusion or emotion.
Second, much time and resources must be spent actually getting the jurors to show up.
More time is spent selecting jurors for a panel. The case moves much slower in trial,
because time is spent making sure that jurors are not allowed to hear the wrong piece of
evidence. None of these problems exist when a skilled judicial officer hears the case.
Many will say
that the federal and state constitutions require the jury system as it is. They do not.
The federal constitution has nothing to say about jury service in state civil cases. To
the extent the state constitution requires jury service, it does not do so for many cases.
And the state constitution can be amended to reduce the cases for which juries are
available. Indeed, we amend the constitution with propositions every election.
Rather than assuming that the best thing for society is to try to make people want to
serve on juries in civil cases, people should ask whether the best thing is to reduce the
number of civil cases in which juries are available, and even there reduce the number of
jurors involved. Civil dispute resolution is nothing more than a government service. The
government will continue to provide civil dispute resolution; there will just be less
public involvement. If the public wants to volunteer for jury service, and lawyers want to
use them, that should also be permitted. I suspect few among the public will volunteer.
Instead of requiring people to spend time assisting in civil disputes that they have no
stake in, we should let a skilled judicial officer decide the dispute.
The lawyer lobby (and particularly the plaintiffs' bar) is a powerful faction and has
much to lose if the ideas set forth here were adopted. Verdicts would be smaller. Judges
also have much to lose. But lawyers and judges should stop assuming that civil dispute
resolution is the most important government service and instead think about the public
which suffers the consequences. The answer is not to require more tax dollars to make jury
service kinder and friendlier. It is to reduce the use of jurors in civil dispute
Robert N. Treiman practices civil litigation
with Loeb & Loeb LLP in Los Angeles.