Juries Should Not Be Abolished in Civil Cases

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Juries Should Not Be Abolished in Civil Cases

Paula DiPerna

When writer Paula DiPerna was called for jury service but not selected to serve, she decided to sit through the trial anyway. Throughout the proceedings she interviewed the lawyers, and afterward she talked to the jurors. The result was a fascination with the jury system and its profound strengths and weaknesses, which grew into her book Juries on Trial: Faces of American Justice. In the excerpt below she discusses the various dynamics that affect civil juries, the ways lawyers use and sometimes misuse these juries, and the misconceptions that some commentators have about the civil jury system, especially when a jury awards a plaintiff a seemingly outrageous amount. For DiPerna, while alternatives such as arbitration have their place, the right to present one's case to an impartial jury remains a vital defense for victims of injustice.

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Often, the jury has to decide the monetary value of a person's life. In the case of Robert Williams, aged twenty-five, who was killed by a robotic vehicle in a Ford Motor Company casting plant in Flat Rock, Michigan, on January 25, 1979, the jury awarded his family $10 million. Almost immediately after the verdict was announced, in August 1983, the attorney for the defendant company, which designed the robot, filed a motion for a judgment notwithstanding the verdict—a reduction of the verdict award, or a new trial—calling the jury's verdict a "shock to the judicial conscience."

It was a typical complaint in an atypical case, and typically the jury bore the brunt of the criticism. However, judicial conscience and community conscience may not have been parallel in this case. That is why there is a jury system in civil law, and why some critics contend the civil jury is a remnant of the past.

It took only a few hours to select the jury in the case of Sandra A. Williams, administratrix of the estate of Robert N. Williams, versus Unit Handling Systems, a division of Litton Industries, Inc., the system's designer. There were no challenges for cause, very little questioning about the jurors' backgrounds or personal beliefs. Though the case was heard in state court, all questions during voir dire were posed by the judge. The attorneys, though they could have put additional questions to the jurors through the judge, opted to seat the six-person jury with a minimum of delay, although the nature of the case might well have drowned voir dire in detail.

Robert Williams died instantly when he was struck in the head by the mechanical arm of a robot, designed by Litton and installed at the Ford plant, which produced sand cores for molding the hollow places in engine blocks. The legal questions were simple: Who, if anyone, was negligent and who, if anyone, was liable? But in determining that, the jury which heard the case also was grappling with questions of how machines—computers and robots—will interact, legally speaking, with workers in the future. It was a case that brought into sharp relief how community attitudes and economic circumstances seep into the justice system and how the jury functions in civil law.

Had the case been heard by a judge alone, the verdict might not have been as astronomical. However, the jury's presence converted the episode into an event with wide ramifications for industrial policy, which policy makers might study. Whether six people on a jury should have such influence is part of the recurrent argument over whether juries should be abolished in civil cases. The Williams case demonstrates what might be lost and what might be gained by abolition.

Millions of civil cases are litigated each year in the United States—everything from broken sidewalk cases to billion-dollar antitrust suits. Much is written and said about the "litigation explosion" and excessive jury awards. In his 1949 book Courts on Trial, Jerome Frank wrote that in civil matters "trial by jury seriously interferes with correct—and therefore just—decisions." Chief Justice Warren Burger has advocated abolishing the jury in civil matters. Hans Zeisel believes it is possible that the civil jury could be gone before the end of the century because it is "much less firmly rooted in Constitutional guarantees."

However, as one lawyer expressed it, the jury is an "easy target," because it decides the outcome; and those who do not like the outcome often blame the jury for having done some wrong. Interestingly only a fraction of the cases filed ever come to trial—approximately 6 percent in the federal system. . . .

High Awards Lead to Questioning Jury System

Clearly, something has changed in terms of what juries consider fair settlements. In 1962, nationwide, only one jury verdict awarded $1 million or more in personal injury suits. In 1981, there were 235 such awards.

Critics of jury settlements often evaluate those settlements in the vacuum of the trial court, where the jurors are supposed to be immune to aspects of the outside world that might influence them. However, in Detroit, the social and economic context from which the jury derives is extremely difficult to set aside. Detroit, long a symbol of the industrial prowess of the United States, embodied in the automobile industry, is now a symbol of the decline of that prowess. Downtown Detroit may have a Renaissance Center, but it also has the huge space left empty by Hudson's Department Store, the last great retail establishment to abandon the inner city. As jurors drive to and from court each day, they often must traverse whole blocks of ghetto, constantly aware of how much the city has depended on industry and how much industry has proved undependable. Though there are signs of recovery in some areas, the efforts seem so earnest as to be desperate. A billboard outside a row of new downtown apartments, for example, proclaims in silver letters that glisten in the sun, "Buy a condominium. Get a Cadillac free."

Critics of the Williams verdict think his family got the equivalent of a free Cadillac. Tonkin, the Litton attorney, while in no way belittling the tragedy of the death, says he expected a verdict no higher than $2.5 million. He filed a judgment notwithstanding the verdict, under laws which permit this as a redress of jury error if a verdict is thought to have been reckless or not based on fact.

Juries Accused of Not Understanding

Often in civil cases, when the jury verdict is in dispute, there are accusations that the jury really did not understand the case or the nuances of the law, and that error and sympathy conspire in favor of the plaintiff. Though Litton's attorney argued in his motion that the verdict rendered by the jury was against the great weight of the evidence and was based upon "conjecture, speculation and guess . . . with no basis in fact," he would not wish to see the jury eliminated. "The jury system is fair, although perhaps I shouldn't say this, but I would do better as a defendant's lawyer without it. It is a heavy burden upon a judge to decide a case like this. I am not so sure that in a routine case a judge would be better than a jury. This case was an exception. You don't see these verdicts every day."

As to whether the verdict was incorrect—that is, not based on evidence—one must look to the nature of the adversary system. The Williams jury foreman noted, "The judge just sits up there and lets some of these lawyers carry on maybe a little too much. Watching witnesses is very enlightening. If it is their lawyer examining them, it is one thing; then when the other lawyer comes up, they automatically, just like day and night, they just flip their style." He also added, "You can see there's always some points the lawyers on both sides would just as soon not develop." It is what Jerome Frank called the "'fight' theory versus the 'truth' theory of the law," and it is the battle which takes place in every courtroom in the United States.

Though both attorneys agree that the Williams case was "clean"—that is, undertaken with a minimum of lawyerly tactical warfare—there are certainly two views of the truth in this case. Litton's view held that their system was safely designed if used as recommended, and the Williams' view was that Litton's idea of how the system would be used never meshed with the practical circumstances of its operation. Each side buttressed its view with legal references and other case law, but in the end, the jury's view of the facts lined up with the plaintiff—save for the lone dissenter, who matched up squarely with the defense. So, the jurors understood the arguments and did what they were charged to do—namely, determine where they felt the preponderance of the evidence fell. . . .

Of course, most civil cases are routine and well within the grasp of the average juror, and, most often, the jury performs at least as well as in criminal matters and similarly to the judge. The Kalven-Zeisel study in 1966 of over 4,000 civil cases found that judges and juries agreed about liability in 78 percent of the cases, and, perhaps more interesting, the jury was more favorable to the plaintiff in 12 percent of the remaining cases while the judge was more favorable in 10 percent of them. As Kalven and Zeisel wrote, "This finding is in the teeth of the popular expectation that the jury in personal injury cases favors the plaintiff, at least if that expectation is taken to mean that the jury is more likely to favor the plaintiff than is the judge." The study does add, however, that "when it comes to the issue of damages, the jury's award is on the average about 20 percent higher than that of the judge." In 1937, in the six-county study including Wayne, practically no difference was found in the assessment of damages between judge and jury, which may mean a slight shift has taken place, more indicative of society's attitudes toward money and who should have it, than to efficiency of the jury system. But if juries are likely to award more than is a judge, that seems to be part of the contemporary process of litigation, and the jury system per se should not be penalized because of differing views of what various damages are worth. It seems to me that if we are content to let the market decide what food, clothing, and housing should cost, we ought to be content to allow the market—the jury—decide what value to place on injuries, inconvenience, and wrongful death.

Juries as Pawns

Whether or not the jury is statistically more likely to award higher damages, lawyers seem to act as though that were so. I have come to call this the "hot body" approach to justice, a phrase I picked up from a sagacious jury clerk in Manhattan. I had complained about being held in the bullpen, one of the large waiting rooms, without being called anywhere near a courtroom for a case and without any information about when I might be needed. "Relax," the clerk told me, "you don't think you are being used, but you are—just by breathing. You wouldn't believe how many cases have been settled this morning without coming to trial. When these lawyers see all you hot bodies out here, they decide to give in." What he meant, of course, was that pressured by the sight of a real jury ready to go, the side with the weaker case decided not to risk the jury trial at all but to settle for what was offered.

Often, too, a trial will begin, and as the lawyers see the case unfold, how their witnesses are coming across, how their side of the truth is holding up, they decide whether or not to go all the way to a verdict. This "use" of juries annoys most jurors, if mail I have received is any indication; for example: " . . . needless to say, the case that I finally ended up on was settled after three days of trial, two hour lunches for all of us and lots of taxpayers' money." And from an attorney in New Jersey:

"About six years ago I was involved in a very complex jury trial . . . about nine lawyers involved representing the various clients. . . . The jury selection alone droned on for two full weeks—intentionally so on the part of the [defense] lawyers to wear down the plaintiff in the case. . . . In the end, the case was settled shortly after the two weeks it took to pick the jury. The strategy worked. There was talk of all of us having reunions and getting T-shirts imprinted as a remembrance of the occasion. I really don't need the T-shirt to remember." Doubtless, neither do the jurors.

Eleventh-Hour Settlements

According to Time magazine in 1982, one quarter to one half of all cases that come before a jury are settled before the trial ends.

One young woman recounted the typical eleventh-hour tale. She had been selected as a juror in New York City in a case involving an incident that took place during the 1980 transit strike, which left the city's 9 million people without any public bus or subway service. In such emergencies, the city acquires the atmosphere of carnival, where routine is broken and one catches as catch can. In this atmosphere, the plaintiff rode a chartered bus toward his home but got off early because traffic was so snarled. At the corner, he claimed, he was offered a ride in his direction by the driver of a van owned by a dry cleaning company. However, before the plaintiff could enter the van, the vehicle started to pull away, knocking him down. A third vehicle—another chartered bus carrying employees of a large credit card company—allegedly ran into the man as he fell. The man broke a leg and sued the owners of both the van and the bus, which he claimed ran him down.

The trial lasted a week, and on the day the jury was about to begin deliberating, they noticed that the van company representative and his attorney were no longer in court. The judge instructed the jury to draw no inference from that—the juror told me the jury did not. After deliberating three hours the jury exonerated the bus company completely: "We did not believe it was possible to be run over by a bus and have only a broken leg." And it found the van company liable for $100,000. But then the jury learned that the van company had settled the case the day before by paying $40,000.

Tales such as these draw a lot of criticism to the jury system, based on the belief that if cases were tried before a judge, lawyers would be less cavalier about settling midway through or less likely to embark on trial of a less than worthy case. Also, the time taken up by jury selection would, in theory, be saved. Delay is an anathema to judicial efficiency advocates; and it is repeatedly argued that removing juries in civil cases would significantly reduce delay.

Interested in investigating popular assumptions about the jury system, Hans Zeisel set out in 1959 to look into whether time could be saved by eliminating juries. The conclusion of the study, based on New York's courts, was that it takes about 40 percent less time, overall, to try a personal injury case without a jury than with one. However, translating this "savings" into actual court conditions could in fact liberate only the equivalent of 1.5 judges because so few cases actually come to jury trial. A judge's calendar is consumed by many judicial functions in addition to jury trials. . . .

Removing Juries Not the Answer

While removing the jury would obviously eliminate the possibility of juror error, it would be an abuse of the idea of efficiency to use jury elimination to "scare away" unworthy suits or million-dollar verdicts. That seems to me to force the worthy suer to pay, in loss of the opportunity to put his cases before a representative group on its merits.

It would be more fairly efficient to provide alternatives to courts—arbitration, mediation. A good professional lawyer does not take a case to court for the heck of it, but removing the jury system will not remove poor unprofessional lawyers or judges.

Nor will it remove greed, which is an undeniable motive in some cases. Clients can be greedy, lawyers can be greedy, refusing to make offers of settlement, refusing to accept them. These greeds can feed each other, since the lawyers' fees are tied to, and often paid from, the settlement awarded.

The irony of civil law today is exemplified by the Williams case. In Michigan, there is an innovative system of mediation wherein a case comes before a panel of three attorneys who rotate, in their own form of jury duty, and make a recommendation for disposition to the parties involved. In the Williams case, the mediation panel recommended that Litton's Unit Handling division settle the case for $700,000. The plaintiff was willing to accept it, but Litton Industries was unwilling to pay it, electing to go on to trial, apparently against the advice of its local counsel. Consequently the defendant faced a $10 million liability verdict delivered by a jury the defendant had a part in selecting and chose, on its own, to appear in judgment before. And society might well be grateful that contemporary civil law is still able, through the jury, to give voice to those values which, though they must be expressed in terms of dollar amounts, really do transcend them.

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