Friday, October 14, 2005

Unreasonable Jury Criticism

For years, the folks at Reason Magazine have had an ineffable hatred of juries. It seems to have began with Virginia Postrel - an elitist jury hater, and former editor of that magazine. A recent article by a Tim Cavanaugh states that "American jurors are a bunch of louts, nincompoops, and media whores who need to stop trusting their guts and start listening to people smarter than themselves."

Well, well, well. Strong words - with no indication that Mr. Cavanaugh has anything to back them up. Jurors are not only the conscience of the community - they are also the most conscientious actors in the American legal system. What Cavanaugh complains of are the consequences not of bad jurors - but of bad lawyering.

When juror John Ostrom states that "[w]henever Merck was up there [on the witness stand[, it was like wah, wah, wah," he is demonstrating the failure of Merck to present a cogent case through its witnesses. Lawyers are supposed to be communicators and persuaders -- yet many are incapable of making their case understandable to a lay jury (perhaps because they don't understand it all that well themselves). Lawyers, and expert witnesses, who lean on legal buzzwords and technical jargon, or who talk down to jurors, are not doing their jobs, and can expect to lose.

The average juror in America has about half a year more education than the average American, and tends to take their job far more seriously than judges or lawyers do. Jurors have one case - and they want to get it right. Lawyers and judges become jaded, and have numerous cases on their dockets at any one time.

Is the jury system perfect? Of course not. Is the alternative -- trial by judge -- any better? Again, of course not. While any individual juror may not have an advanced scientific or business background, the chance of one or more people on a jury understanding such evidence (and being able to help the remaining jurors through it) is relatively high - especially in light of the fact that almost none of the judges in American courtrooms are trained in such disciplines.

Anecdotal stories are easy to find to impugn any human institution - yet such anecdotes rarely give a full, fair or balanced picture. Out of the hundreds of thousands of Americans who serve on a jury every year, the vast majority do so with intelligence, a sense of justice, and the willingness to give all sides a fair hearing. Scapegoating the jury for the failure of bad lawyers to communicate a coherent case has it backwards. We should not reform (deform?) the jury system, merely to make the world a safe place for bad lawyers.

The jury system is, as Thomas Jefferson noted, the only way known to man to hold a government to the principles of its Constitution. It is the one place where average Americans get to participate in the administration of government power, and to understand how their government works in practice. We need to start by publicly recognizing that American jurors are US, and that, given good information and by paying attention to our sense of justice, we, the people are capable of coming to the right answer more often than not. We do not need some self-appointed elites (those Cavanaugh refers to as "people smarter than themselves") to make our decisions for us.

That was the principle our American democratic republic was founded upon. And, if it no longer holds true, we need to rethink far more than the institution of trial by jury.


At 10:07 AM, Blogger KipEsquire said...

Well, well, well. Strong words - with no indication that Mr. Cavanaugh has anything to back them up.

Um, Vioxx trial?

At 12:14 PM, Blogger Clay S. Conrad said...

You have made my point. Cavanaugh takes a couple of anecdotes (without considering everything that led up to that anecdotes, BTW), and from them fashions a broad, sweeping condemnation of all jurors in America.

That is like saying that all politicians are stupid because of Joe Nixon (who used to be my Texas State Representative, and who makes my fencepost look quite lucid by contrast). Joe Nixon's lack of mental functioning provides nothing to substantiate a broad condemnation of all politicians, many of whom may be quite clever.

Similarly, even IF the jurors Cavanaugh points to are problematic - a proposition that cannot be conceded on the paltry evidence offered - there is nothing to stretch from those isolated, spectacle trials to the broader issue of jurors in general. I dare say that the average juror in America is more ethical, more conscientious, and more interested in justice than the average lawyer, judge or magistrate, who are as interested in doing justice as an electric utility is interested in providing light.

At 5:18 PM, Anonymous Phil Monte, Ph.D., J.D. said...

Clay Conrad is right on. I may be a bit more skeptical than he is in some respects about the functioning of the jury system, but the public is better off by far in trusting its justice system to the hands of a jury of our peers rather than professional lawyers and judges. And lawyers certainly fail -- on a regular basis -- to make reasonable and comprehensible arguments that laypersons can buy into. As a matter of fact, some of the most highly paid do the worst job of it! So learn be careful before shelling out $400 an hour. Very interesting points.

At 3:17 PM, Anonymous Anonymous said...

"We could start by stating publicly what everybody admits in private: American jurors are a bunch of louts, nincompoops, and media whores who need to stop trusting their guts and start listening to people smarter than themselves. The future of the Lawsuit Nation may depend on it."

Publicly, by whom? The Judiciary or the Attorneys themselves?

We could start by eliminating some of the onerous parts of voir dire that selects out many of whom are in fact intelligent. Voir dire that selects down to the lowest common denominator...

But even here, Cavanaugh fails to cite evidence that would suggest that all juries do not do their best with what they are given to operate with: Boring technical terminology that even the attorneys and Judges do not understand; Complex jury instructions that appear, on the surface, to contradict common sensical interpretations.


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