Wednesday, August 17, 2005

Professional Juries: I Still Don't Think So...

KipEsquire of A Stitch in Haste takes issue with my opposition to professional juries. He seems to believe that my position is circular. In his words: "professional jurors would be bad because they would be professional jurors, which is bad."

Not at all.

Professional jurors would be bad because they would not be jurors (as the Founding Generation understood the term), which would be bad.

Professional jurors would be, by definition, a panel of specially trained and experienced government employees.

Jurors are, by definition, lay members of the general public.

Thus, the term "professional jurors" is an oxymoron. An oxymoron, as we all know, is an extremely large moron. Which is exactly how we can expect professional jurors to behave: like extremely large morons, i.e., bureaucrats.

What Kip and others fail to address is the difference between JUROR incompetence and ATTORNEY incompetence. We attorneys tend to assume that if the jury didn't understand something, it is their fault.

Perhaps if we presented our cases more coherently, deliberately, and thoughtfully, juries would understand what we are talking about.

The best lawyers never seem to complain about incompetent juries. The Gerry Spences, Dick DeGuerins, Tony Serras, Tom Mesereaus, etc., always seem to have much smarter juries than the average lawyers.

Those juries understand every word these lawyers and their witnesses say. What brilliant, insightful jurors they must get!

When we fix the wrong problems, we employ the wrong solutions.

5 Comments:

At 11:42 AM, Blogger Eh Nonymous said...

Clay:

When the only tool you have is a professional jury, every problem looks like a dumb lay jury.

You defined jury in an interesting way, but what about subject-matter juries?

Part of the difficulty with bringing a complex civil or complex criminal case is that the jury will be

- lay people
- imprisoned against their will for a very poor salary, for an extended period of time
- totally unfamiliar with both the facts and the law.

We want jurors who handle the hardest cases to be

- free to devote their time
- impartial
- familiar with community standards, to whatever extent is appropriate
- judicious.

I suspect that for medical malpractice, a properly selected professional jury of _doctors_, rather than of lawyers and bureaucrats, would produce good results. No doctor wants to see more malpractice. No doctor anywhere wants to excuse a quack; butchers have to be stopped.

But no doctor anywhere will listen to evidence that says that a given physician had read the indications, talked with the patient, gotten enough sleep and made a non-negligent slip during surgery with catastrophic results, and then award sympathy damages. I just can't believe they'd do that.

I personally favor either

- ridiculously high malpractice awards, because we continue to have malpractice and we're apparently not dissuading doctors enough from being cavalier, or

- a system like workman's comp, whereby injured persons will be taken care of out of a fund, irrespective of a defendant's fault or comparative fault.

In fact, I think we are punishing non-negligent doctors who are brusque or unlovable, and allowing to slide incompetent hacks who are the life of the party and no patient can believe is responsible for their disfigurement or other injury.

Well, what's to be done? I suspect the answer is, not jury reform.

 
At 1:17 PM, Blogger Clay S. Conrad said...

First, it is a benefit, not a detriment, that jurors are lay people.

Jurors are free to devote their time to a case, and generally do so with great integrity. Jurors tend to act quite judiciously, to the extent that term means to act carefully, with close examination of the facts and law, and with deliberation.

Their unfamiliarity with the facts and the law are not detriments, but again, benefits. We do not want people who think they "know it all" before the case starts. The fact that they all learn the same things at the same time lends to their impartiality.

A panel of doctors, or any other experts or specialists, are not going to be impartial. Nor will this group of people, chosen from a subset of the community at large, ever be familiar with community standards in the way that a group of the lay public is.

I think the criticisms of the jury tend to be inspired more from the media's highlighting of specific cases, and not from the general behavior of jurors in the broad range of cases. Should the latter be examined, the calls for the "specialized" or "professional" juries would disappear.

 
At 11:34 AM, Anonymous Kilroy said...

It's not the first time I've seen that technique - (to my eye) intentionally misrepresenting a prior argument as something absurd, and pretending that it is thus not worthy of discussion. After all, it's a heck of a lot easier to do that than it is to think.

Which advocates of professional jurors or subject-matter juries want objectivity? Well, I suppose some may sincerely believe that there is more "objectivity" in a jury that is predisposed to find for them, so perhaps I should say, which advocates of such systems aren't trying to stack the deck?

 
At 8:05 PM, Anonymous Anonymous said...

As a former prosecutor, and jury consultant, I can vouch for the proposition that jurors tend to exercise more common sense than the attorneys whom they must endure during trial. The point is well-taken that the most successful attorneys rarely complain about the juurors' ability to understand the arguments presented to them. I have seen many lawyers demonstrate disrespectful attitudes towards their juries before, during, and after trial, and then wonder why the jury returned a verdict against their clients. On the other hand, attorneys who present themselves with humility and treat jurors with dignity very often obtain at least a sympathetic ear during openings and closings.

 
At 12:14 PM, Anonymous Anonymous said...

But isn't that the essential problem? Should not the jury enact the law, and not a bias towards or against a particular lawyer? A jury composed from a pool of professional jurors would be able to better evaluate cases because they would be trained to do so. People have since time immeorial been trained to elide biases against or for specific causes. It is a suspension of humanity for the sake of objectivity, perhaps, but it would certainly be more effectively than irrationally derived emotional conclusions. It would naturally be nice if we could trust lawyers to be responsible enough not to rely on such tactics, but ultimately we must understand that the primary motivation of most lawyers is money.

 

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