The American Civil Jury: Final Report of the 1986 Chief Justice Earl Warren Conference on Advocacy in the United States Washington: The Roscoe Pound-American Trial Lawyers Foundation (1987)
Abstract
To observers who think America is in a litigation crisis, juries are part of the trouble. At the least they are a cumbersome obstacle to judicial efficiency, preventing needed streamlining of procedures. But to most critics, it is not procedural cumbrousness that is the sin of juries, but their incompetence, arbitrariness and sentimental bias toward claimants. As one attorney puts it: "Every jury is a one-night stand. It is not very expert, it is not held accountable, and it never has to live with the consequences of its actions. Civil litigation often is an opportunity for juries to play Robin Hood and redistribute wealth. As a result, verdicts range all over the place .... Sometimes it seems that the less tangible the harm, the greater the verdict. ... Big verdicts on flimsy claims send an unhealthy message: that we all are victims, and that if life hits us with any unexpected unpleasantness, someone must have broken the law .... Media coverage of big verdicts contributes to an Irish Sweepstakes kind of mentality: A person who suffers an accident thinks not just of filing suit, but of striking it rich. A defense attorney concerned with "the crisis of skyrocketing jury awards' concurs: Sympathy to an injured party, together with a latent hostility to anonymous and rich corporate America and its insurance carriers, often set the stage for enormous verdicts which exponentially exceed the earning power of the product liability plaintiff. The present system is unfair in that the amount of the jury verdict often is not correlated to the injury a plaintiff has suffered .... 2 Even certified liberals concur with this view of the sentimental jury: In realtife, any theory will do as long as it gets the case to the jury, whose natural sympathies will usually produce a large judgment without much concern for the legal technicalities. Fear of juries leads defendants to settle suits, whatever their merits. High settlements lead to skyrocketing insurance rates. And soon ... the activity in question ... is no longer economically practicable. 3 If the jury is thought to be jointly liable for the litigation crisis, the assault on it is relatively restrained, compared to the excoriation of greedy lawyers and activist judges, who are seen as the real culprits. Proposals abound to limit jury awards by caps on 'non-economic' damages and punitive damages and by changes in liability rules (e.g., joint and several liability). Other proposals would, divert cases to arbitration and other 'alternatives' -though for the most part these would displace bilateral negotiation rather than jury trials. The absence of any significant camp'aign to abolish the civil jury may reflect a judgment that the Constitutional guarantee of trial by jury presents too formidable a barrier to be overcome. Perhaps it suggests that the current crop of reformers are not in civil justice reform for the long haul that such a campaign would require. It reveals that they are not animated by an alternative vision of the civil justice system.4 For the most part their discontent remains within the legalistic mainstream: the most audible critiques of present arrangements typically incorporate a heavy dose of nostalgia for the good old days when the system worked. 5 Defenders reply in kind. 6 The debate is framed in terms of admiring regard for the time-tested institutions of the common law.
