Mark Twain once wrote of the American jury system that "its efficiency is only marred by the difficulty of finding 12 every day men who don’t know anything of the matter and can’t read." In England, where the jury system is rooted, the venire consisted of citizens who usually knew something about the event at trial. And, as the world expanded and news traveled far and fast, finding a jury of those who didn’t have first or even secondhand knowledge of the events at trial became impossible. Today, that has evolved to extensive questioning of potential jurors to ascertain their knowledge or awareness of the events at issue, or, at the least, to find those who can swear that they will form an opinion based upon the facts and the law.
The right to a trial by jury is embedded in the American democratic ethos. The Seventh Amendment to the Constitution guarantees a trial by jury in any civil suit exceeding $20. As more civil cases have an impact beyond the lawsuit itself, jurors are taking their assignment very seriously. As a personal injury attorney, I have witnessed over and over again a jury serving a purpose beyond closure of a tragic event in a family’s life. It also serves a healing purpose of sorts for the victims and all those who were impacted by the event. At some trials, jurors become so enraged at the facts that they feel they must send a message through their verdict for all the world to sit up and take note. Juries do that. Through them all of America speaks. The jury system in this country is designed for the few to speak for the masses.
A Jury’s Function
Jurors certainly have an awesome responsibility in criminal cases in deciding sometimes the life and death of a person. But the function of a jury in civil cases is evolving into a role beyond determining the rights of individuals. It is taking on an educational role as well as setting the standard for what is acceptable conduct by negligent corporations in this country through a verdict. Note the recent record $3.5 billion punitive damages award involving a Louisiana railway fire. As one juror put it, they wanted to send a message to the corporation for its "unconcern" for the safety of others when it allowed the storage of highly flammable and toxic chemicals in a poor, largely Afro-American neighborhood.
A jury’s presence can be a very powerful force. Would the tobacco industry be motivated to settle in the various states if not for the fearful message a jury could send? Just as Americans today have little tolerance for rapists and drunken drivers, so, too, they are demonstrating a growing intolerance for aircraft manufacturers and operators when a plane crashes, particularly when it is due to some foreseeable problem that was correctable but went ignored.
More and more juries are making such statements through their civil awards, often using the jury box as a soap box to make a public statement on issues that impact those beyond the courtroom. Think back to the highly celebrated cases involving O.J. Simpson and the death of his ex-wife. The difference in outcome in Simpson’s civil and criminal trials had as much to do with the function of the jury as it did with the differing standards of proof. Jurors also are demonstrating a growing intolerance for aircraft manufacturers’ and operators’ negligence in failing to correct foreseeable defects when a plane goes down. This was apparent in the $110 million settlement for 27 of the families in the Roselawn, Indiana crash. During jury selection, settlement talks finally began in earnest with the defendants desperately seeking to avoid the first words to be spoken to the jury in opening arguments.
"Selecting" a Jury
I have successfully tried many jury cases against the largest of corporations, and I find the process of selecting jurors more of a science than an art. Attorneys do not select juries. They de-select them. With peremptory challenges allowed on both sides, "good" jurors inevitably are excused by one’s opponent. Therefore, the goal becomes to eliminate jurors who will react unfavorably to one’s case. The question then becomes, how do you know which are these jurors?
The purpose of the voir dire is to elicit as much information as possible about the jurors to determine whether they can render a fair verdict in the case. Does a lawyer’s inquiry of a prospective juror’s views, values and beliefs amount to indoctrinating or conditioning the jury before trial? Perhaps. But what most attorneys are really trying to do is to determine how those observations and life experiences will impact that person’s ability to be fair and impartial.
Has the juror ever been hurt on the job? Has the juror even been negligently injured at the hands of another? Ever filed a lawsuit? Does the person feel that doctors are a special class of people who can do no wrong? Will the person have any hesitancy in signing a verdict for the plaintiff if the case has been proven to involve a substantial sum of money, even millions of dollars? These will be just some of the questions pertinent to the civil case. The answers add up to a behavioral profile of the potential juror which every trial lawyer confronts before entering the courtroom.
Litigation Support Services
With the high stakes in a courtroom today, attorneys are trying to make jury selection more than a crap shoot. Litigation support services have become a burgeoning consulting business that should be explored in high stakes trials. These services can cost a few thousand dollars up to six digits in more complex cases, ranging from a simple random telephone survey to a simulated jury trial.
Focus groups or jury research groups are one such technique where people are selected at random from the area where the trial will be held. Specific questions directed to the group help draw a profile of potential jurors’ attitudes and habits on certain issues in the case. Many times, the plaintiff’s attorney will hear or see these "mock" jurors struggle or misidentify one of the basic themes of the case. Focus groups can aid the attorney in developing or clarifying a theme. Another advantage of focus groups is to experiment with the reaction of potential jurors to certain witnesses or exhibits. It is better to find out the value of the evidence during a "pretrial" investigation as opposed to during the trial itself.
These focus groups can be a tremendous asset for the trial attorney to determine how and why potential jurors will award damages in the case. For instance, I once represented a young man who suffered many severe injuries as result of an auto accident. But the fact of the boy’s blindness in one eye was lost on focus groups and mock juries before trial. Therefore, at the trial itself I put an ophthalmologist on the witness stand for half a day to discuss the impact of that injury. The jury returned a record verdict and afterward, when questioned, the jurors said the boy’s blindness was a major contributing factor to that sum.
Knowing how potential jurors process information and make decisions will help an attorney determine how to present trial information. In civil cases, it all boils down to finding jurors who can be reasonable and don’t have preconceived ideas that hurt your client’s case.
Studies of Jury Awards
Bear in mind that a relatively small percentage of cases even make it to verdict on the civil docket. Study after study reports that the size and number of jury verdicts against corporate defendants is shrinking.
Perhaps the most popular and conclusive study was that conducted by the respected Rand Institute for Civil Justice which examined trends in civil jury awards in San Francisco and Chicago from 1960-84. The data concluded that plaintiffs in most jury trials received modest awards.
In a more recent study, Neil Vidmar examined literature on pain and suffering awards in California, Florida and New York — states that require the jury to specify damages for each element of the award — and concluded that during the years 1985-1997 awards increased with the severity of the injury except that in death cases there was a sharp decrease. "Jury Awards for Medical Malpractice and Post-Verdict Adjustments of Those Awards," 48 DePaul L. Rev. 265 (1999). Vidmar also noted that post-verdict awards that plaintiffs received were lowered by judges, the figure varying from state to state.
The jury is meant to represent the community as a whole and when these people feel such outrage, they should be allowed to speak in this way on behalf of the public. More and more jurors are taking the time to consider what is right and wrong and are attempting to set a standard to reflect those attitudes through their deliberations. Assuming that the key actors in a courtroom — from the judge and attorneys, to witnesses and jurors — can and will understand their tasks and set aside their personal prejudices, the American jury system works and works well. Trial by jury is said to symbolize the importance and respect of individual rights. It is a group of people who apply a measure of equity, fairness and impartiality to the proceedings. This is its political function. But it is an educational function as well. It reflects the current attitudes on certain issues confronting America, setting the standard.
It is these attitudes — the attitudes of the American people — that should be honored when jurors reflect their sentiments through a verdict, or perhaps even through their mere presence in a courtroom. Above all, pop culture’s cynical mistrust of the jury system serves no purpose. Americans fought too hard to establish it. And, rather than destroy it, one should take solace in the fact that all of the slick talk and smooth presentations in the world are never going to hoodwink 12 people. Believing in that mantra always renews my faith in the jury system where, above all, sincerity, competency and professionalism prevail.
Robert A. Clifford is the principal partner of Clifford Law Offices, a nationally recognized personal injury law firm in Chicago concentrating in aviation, transportation, personal injury, medical negligence and product liability law. He is Past President of the Illinois Trial Lawyers Association and has been inducted into the prestigious American College of Trial Lawyers and the exclusive International Academy of Trial Lawyers. He has been selected to be a part of the National Judicial College, a select assembly of legal and corporate leaders from across the country dedicated to furthering the education and training of judges. Mr. Clifford also serves on the Board of the Rand Institute for Civil Justice, a "think tank" based in California.