After nearly thirty years of trying all manner of cases before juries, I believe that it is still the best method for resolving legal disputes. Juries get it right most of the time. That is with whatever testimony, documents, photographs, expert opinion and any other type of evidence they are presented with, they usually make the right choices.
I have tried both sides of criminal matters, ranging from drunk driving to murder cases and both sides of civil cases. Most of the civil cases were representing plaintiffs or defendants in personal injury claims. Presently my law practice is almost exclusively representing injured plaintiffs in accident and medical malpractice cases in New York City.
As you can imagine, there is a wide variety of the types of jurors one encounters in this city. An enormous variety of people from wildly different economic, social, religious, ethnic, age and educational backgrounds.
These differences do not prevent six or twelve jurors from reasonably and logically analyzing evidence and reaching a just verdict. In talking with jurors after they have rendered a verdict, many have expressed to me that it was a rewarding experience to sit on a panel with people they don’t interact with in their everyday lives.
I always talk to the jurors after a verdict, so long as the court allows it. Win or lose, there is something to be learned from hearing how they saw the evidence, the witnesses, the judge, your client, your opponent counsel and yourself.
For example, a number of jurors on a panel said they knew a witness who claimed he could no longer work as a city maintenance worker due to injuries, was not being truthful. How they came to the conclusion was by observing the grit and dirt on his hands and under his fingernails. This was something that they observed without any prompting from counsel or the court. Jurors do pay attention to the proceedings, very often in ways we, as lawyers, aren’t aware of.
Recently, during a closing argument I was giving, a juror spoke up and reminded me of a particular fact when I paused and momentarily seemed to be unable to recall it.
Jurors also bring biases and prejudices to jury service. Sometimes those aspects of a jurors mind set makes them unfit for a particular case. The selection process is intended to weed out the jurors who would better serve on another panel. Sometimes the process fails. The worst example I have ever encountered was a juror who refused to vote guilty or not guilty on a defendant charged with murder. She was waiting for divine guidance which apparently was not forthcoming. I was a young prosecuting attorney at this time, and perhaps there was something I should have picked up on during jury selection. However, neither the more experienced defense counsel, the judge or myself saw this coming when interviewing this juror. Examples such as this are the exception which proves the rule. Juries get the right result with the evidence they are given.
Most prospective jurors I have encountered truly want to be fair. Most believe they can be fair. We as lawyers have to make our judgements on small bits of information gleaned during voir dire. This does not always lead to the right conclusion in accepting excusing a particular juror.
As a prosecuting attorney in a case involving a robbery, I excused a young woman from the panel mainly because she was reading a far left, anti-government local New York newspaper. The next day she approached me during lunch and asked why she was excused from the panel. After talking with her for an extended period of time, it became evident she would have made a fair and objective juror, her newspaper notwithstanding.
Recently I had a similar experience with a juror that I excused from a prospective jury panel for a medical malpractice case. My client’s claim involved the negligence of an orthopedic surgeon during a routine procedure. The excused juror was a woman married to an orthopedic surgeon who was of a similar age and experience as the doctor we were suing. During questioning and in discussion after she was excused, she insisted that she could be fair. Perhaps she was right, she certainly believed so. I did not, so I excused her.
There are instances where jurors lie during the voir dire process. In the most egregious cases the offending juror can be prosecuted for criminal contempt of court. The extent to which jurors conceal or lie about their backgrounds during the selection process is open to debate. Surely it occurs to some degree. My personal experience with this problem involves only minor, relatively immaterial untruths. For example, a juror lying about his employment status, perhaps embarrassed to admit he was presently unemployed. While this raised questions after the fact, it did not appear to affect the deliberations.
The problem of jurors lying to either get on a panel or get off a panel is real and has existed for a long time. In 1933 the United States Supreme Court denied the appeal of a juror convicted of criminal contempt. In that case, Clark v. United States, 289 U.S. 1, the Court said,
“A judge who examines on voir dire is engaged in the process of organizing the court. If the answers to the questions are willfully evasive or knowingly untrue, the talisman, when accepted, is a juror in name only.”
No matter the problems there are very few, if any, instances where a trial before a single judge is preferable to a jury. Juries as a whole are not as easily swayed by the politics of the moment. Juries haven’t “seen it all” in the manner of most judges. Juries tend to be less cynical about cases. Judges can bring preconceived ideas about certain types of cases which impact adversely on one of the litigants. I have had jurors ask me after a trial why the judge was so biased against one of the parties to the lawsuit. Most of the time the jurors recognize this coming from the bench, even if the judge attempts to be subtle about his or her own bias. Judges are, after all, only human.
I don’t intend to denigrate either the ability or the fairness of judges, but juries are a better route for the resolution of legal disputes. Juries allow the judge to do what they do best, mediate between parties and make sure both sides get a fair trial.
So with this being said, the question must be posed as to why there is a very strong movement in the U.S. to do away with jury trials in civil cases. That movement is led by large businesses, trade associations and the insurance industry. It is a movement that seeks to make juries a smaller and smaller part of the civil legal system. This movement attempts to reduce the types of cases one can bring before jurors; by changing laws so jurors have less to decide, by restricting the types and amounts of damages jurors can award. These are the well orchestrated methods which seek to reduce the impact juries make.
As corny as it may sound to some, in front of a jury is one of the only places that the average citizen really does stand equal with the moneyed, and the privileged.
As members of the bar we must be aware of these encroachments and guard the system that has served our community so well for so long. We must guard against the attempt to impose a slow death on an age old system that works so well.
Here in New York I find many jurors who, at the beginning of their service, are unhappy with the prospect of sitting on a jury during a trial. After sitting on a trial, most tell me they felt good about their participation in this process. They experienced a sense of contributing something, helping and just learning the way trials really work. Many come to the process with a jaded opinion, formed from watching fictional versions of trials on television and movies. Many leave the experience with a less jaded, perhaps even positive view of the civil and criminal justice system. Their votes as a juror have far greater immediate impact than their votes on election days. Jurors seem to realize this in discharging their duties.
By Allan A. Blank of Blank, Goolnick & Dittenhoefer
