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Insert Almost a JurorREPRINT
A very great number of trees have been sacrificed in recent years to a debate over the workings of the civil jury system in the United States. It is all too frequently perceived as cumbersome, inefficient, incapable of dealing effectively with complicated cases or cases revolving around technical issues (e.g., antitrust suits and questions of defective design engineering), more driven by emotional appeal than by legitimate factual issues, overly generous with other peoples' (read: insurers') money, and so forth. All of these characterizations contain significant kernels of truth. Many overseas insurers and reinsurers have found it convenient to attribute triple-digit loss ratios on U.S. casualty business to the American jury system, or at least that system as it operates in high-exposure (read: particularly-generous-jury) areas, such as New York and California. This accusation, likewise, contains a kernel--albeit probably a somewhat smaller kernel--of truth. Jurists as Jurors Although our jury system has been constitutionally embedded for over three hundred years, it is still being tinkered with. In New York, for example, it was within the memories of many of us that women could not be required to serve; until then, jury service was for them only voluntary, a status that persisted for decades after women were finally given the right to vote. Far more recently, though yet some time ago, the required number of jurors in a civil trial was reduced from twelve to six (usually with two alternates). Even more recently, the New York legislature did away with the exemption from jury service of that much-maligned subspecies of Homo sapiens: the lawyer (along with certain other varieties, such as doctors, who are irrelevant for many purposes--including this article). Depending on the point of view, this change could be perceived as extending to the legal profession the privilege of participating in democracy in action or as imposing upon its members the intrusive inconvenience of performing their civic duty. Lawyers themselves, of course, tended toward the latter view, with particularly self-pitying mutterings about wasted time. The implementation of this change was the subject of considerable media attention, and Opening Day itself was ushered in with a certain amount of hoopla. The Chief Judge of New York's highest court even made a ceremonial appearance as a prospective juror (and was no doubt bitterly disappointed not to be selected immediately to serve in a week-long whiplash case). Now I am finally getting to the point of all this fascinating background information: I too have found myself among those called to serve, and my purpose here is to share some experiences and impressions--and perhaps, in the process, cast a bit more light on the workings of the system. The Author as Juror - Round One My first Close Encounter with the system came a couple of years ago, when I was summoned to appear at the U.S. District Court for the Southern District of New York. This is a federal court, as distinguished from a state court. (One of the more interesting, if not confusing, features of our governmental structure to many foreign insurers and lawyers is the existence of 50 separate state court systems, each with its own procedural and substantive rules, and a federal court system to boot). A federal court means better physical facilities, less crowded dockets, a seemingly better-organized operation, and (in many instances) higher-caliber judges. I reported as directed to a central jury room that housed what seemed to be a smoothly functioning process and was soon sent with a group of about fifty others to a trial part where jury selection for that case would take place under the auspices of Judge Ward. I quietly informed the clerk of that trial part that Judge Ward and I had been roommates in law school, so he decided in his infinite bureaucratic wisdom that I should go back downstairs. A little later, I was sent with another group of prospective jurors to a different trial part, presided over by Judge Sweet. I reminded the clerk there that only a few weeks earlier, I had tried a case before Judge Sweet (without a jury) and was still awaiting his decision. He too instructed me to go back downstairs. The clerk in the central jury part--no doubt fed up with me by that time--considered the reasons I was constantly being returned to him unused, debated with himself for only a brief moment, and told me to go home in a tone of voice that, while entirely courteous, clearly implied that he would be perfectly content never to set eyes on me again. The Author as Juror -- Round Two Time, as it has a way of doing, marched on, and I was recently summoned to appear for jury duty at the New York Supreme Court (which is the court of original jurisdiction for all civil cases except the smallest). There the situation is very different from the federal court. The physical facilities range from minimally acceptable to outright deplorable, the dockets are seriously congested, there are shortages of courtrooms and of court personnel (from judges to clerks), and the entire jury selection process is far more cumbersome and time-consuming. As just one example, you would think that once the jury has been selected, the trial itself would begin. Think again. What usually happens is that everyone then has to wait until a trial judge and a courtroom become available. This necessitates a complicated call-in system for both counsel and jurors to find out when and where to report for the trial, with at least one participant frequently dropping out for some reason so that the entire process must then go back to square one. The biggest difference is that in federal court it is the judge himself who questions the prospective jurors, with or without the assistance of a few specific requests by counsel. As a result, the process moves along swiftly, and it is rare indeed for it to consume more than an hour or two. In state court, on the other hand, the lawyers do the questioning, and in virtually every instance there is no judge in sight. Whenever the lawyers disagree--for example, about the appropriateness of a challenge to a juror or an objection to a question put to a juror--the entire process grinds to a halt while counsel go for a ruling to the presiding judge, who may or may not be available on instant notice. This system has broader repercussions as well, because the process of jury selection becomes an arena for tactical maneuvering by the lawyers. Having often been on their side of the fence, I found it both enlightening and irritating to be observing from the other side. I spent almost four days there before finally being released on my own recognizance. Rules of the Game During that time, I was questioned as a prospective juror by four different sets of lawyers in four different cases, and this experience enabled me to formulate certain rules of general applicability, at least to the system as it works (or fails to work) in the New York Supreme Court. Rule One Lawyers are disingenuous. Every lawyer tells the panel of prospective jurors, at or very close to the beginning of his pitch, that all he wants is a jury that will give his client a fair shake. Every lawyer who says that lies. What he really wants is a jury that will fall in love with him and his client and deliver a verdict accordingly. Since his adversary has precisely the same objective, he may have to settle for a level playing field, but that is hardly his consummation devoutly to be wished. Rule Two Lawyers are not quite as clever as they think they are. In their efforts to gain even the slightest edge, the lawyers ask any number of ostensibly innocuous questions that are really intended to smoke out even the most deeply buried predilections of a prospective juror. What they usually fail to realize is that everyone knows exactly what they are doing and why, and the effect can frequently be counterproductive. Rule Three Most people don't want to serve. The moment the lawyers were out of earshot (usually to obtain a ruling), the conversation among the panel members would turn to what a waste of time this was and how to get out of it. It is probably politically incorrect to say this, but the fact seems to be that an individual's willingness to serve varies inversely with the:
Rule Four (... and the real point of these observations.) No one wants a lawyer on the jury. Or at least not a litigator. I obviously don't know whether my own experience was typical, but in most respects it probably was. During my time in Purgatory, I was questioned as a jury prospect by ten lawyers (two of the four cases included third-party defendants). A few of them had heard of my firm (or pretended to). Many of them seemed to lose interest in any further interrogation when they learned --or confirmed--that I am a litigator myself. (Here I must confess to a continual need on my part to suppress the urge to stand up during a lawyer's presentation and shout something like, "You guys are doing this all wrong!") Just about every one of them considered my nonservice to be a foregone conclusion when they learned--or confirmed--that the firm and I represent insurance companies. (Here another confession is in order: When a plaintiffs attorney in a personal injury case, who had been getting under my skin for a number of reasons, asked me with wide-eyed pseudo-naiveté whether my having represented insurers for so many years would prevent me from being impartial, I couldn't resist responding that I would try to be objective but I felt it only fair to tell him that I had some pretty strong ideas about exorbitant jury verdicts in negligence cases.) In three out of the four cases I was excused fairly quickly, and I never knew whether it was by consent or because one of the parties had exercised a challenge. In the fourth, it turned out that I was the subject of a heated debate: The plaintiff's lawyer argued that I should be excused for cause, but the defense refused to agree, so the judge had to be tracked down for a ruling. He decided that, despite my background, there was not sufficient "cause" for a challenge, so plaintiff's attorney had to use one of his precious peremptory challenges to get rid of me. (Another rejection!) The bottom line, of course, is that I never got to serve on a jury--and probably never will. But should I --or any lawyer--serve on a jury? Should Lawyers Serve? There may well be situations in which it is perfectly acceptable for a lawyer to be a juror; for example, there is no immediately apparent reason why a merger-and-acquisition specialist should not hear a landlord-and-tenant case, although many a trial counsel would no doubt find even that situation unacceptable. In any event, however, it is difficult to think of many situations in which a trial lawyer would be comfortable with another trial lawyer, even if not insurance-oriented, looking over his shoulder from the jury box. Removing the jury exemption for lawyers was probably an effort to democratize the process and broaden the base of available people. But if I am correct in my conclusion that most lawyers will never get to serve, what it has really done is clutter up the mechanism with additional ways of wasting time. And the more cluttered and cumbersome it becomes, the more reasons some folks--including so many offshore reinsurers--will have to consider us foolish for having jury trials in civil cases. ____________________________________________
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