Judge William Young is calling lawyers to the defense of the jury system. He may be the most passionate and articulate voice to make this call, but there are many other voices. The list of people who are said to be usurping the jury's role includes nearly everyone involved with justice: some blame judges, others the legislature, some blame prosecutors and the rest of the executive branch.
There's a word that comes up far less often in these conversations, though. It's the word "client."
"A shudder down your spine"
I like juries so much that I write about them almost every day. When Judge Young asks his audience to imagine the moment, I'm there:
The jury tells us we have a verdict. Things are set up in the courtroom. Everyone is ready: litigants, lawyers, and the jury comes through the door. Everyone looks. How is the jury? Are they looking at the defendant? Are they drawn? Are they haggard? Are they comfortable among themselves? Court is in session. The clerk says, "Madame forelady. Has the jury agreed upon a unanimous verdict?" The forelady says, "Yes." The deputy clerk says, "Pass the verdict slip." It is passed up, with all eyes on the verdict slip. It is passed on to the judge. The judge opens it. Looks at it first. Says, "The verdict is in order and it may be recorded," and gives it back to the clerk. The clerk looks at the jury and says, "Ladies and gentlemen, would you please rise." And they all stand up, awkward now. Dead silence in the courtroom. Everybody watches that verdict slip. And then the clerk says this, "Ladies and gentlemen, hearken to your verdict as the court records it."
At that moment, if ever you have been there, and when next you go, you will know, with an incontrovertible shudder down your spine, that you are witnessing the purest form of democracy known to humankind.
I know that shiver. Heck, I choke up a little when they take the oath before voir dire. But I'll admit this too: when I'm there, really in court in that moment, it's because nothing else worked. We couldn't settle, we couldn't resolve the case with a motion, we couldn't arbitrate. As much as I believe in the jury system, I routinely work to stay out of it -- and so does every good trial lawyer, at least part of the time. Why? Because we have a duty that trumps our loyalty to the jury system. We represent clients.
We don't practice politics
When clients and lawyers set litigation strategy, they consider many factors. Politics and the future of the jury system are not among them. What they think about instead:
- Certainty. We can't predict what a jury will do, ever. When parties resolve a dispute with a clear agreement, they lift themselves out of a fog of uncertainty.
- Expense. Whether it costs tens of millions of dollars (as the WSJ Law Blog, via Simple Justice, reported were the defense fees in several prominent prosecutions) or "only" tens of thousands, trial by jury is an expensive privilege. Settlement, arbitration, and resolution by motion are all worth exploring in the seach for more affordable justice.
- Importance. Related to the points above, but perhaps worth making separately: some disputes are just too small or too big to try. Nothing makes a jury madder than when the amount at stake is less than the combined wages they're all losing by being there. On the other hand, a true "bet the company" (or the farm, or your life) trial is too big a bet for many parties. Last week Mark Bennett described movingly a client's decision to plead in a death penalty case, simply to save his life.
- Time. In most jurisdictions, a jury case -- from complaint filed to appeal decided -- takes at least a few years, and sometimes several. Life is short, and many parties decide they don't want to devote that much of it to litigation.
- Finality. In many cases, the jury's verdict is not the end; it's just the beginning of the appeal process. Litigation of any size and kind takes a heavy toll on the parties, and often they see the wisdom in just being done.
- Legal rights. Summary judgment stops looking like a judicial land grab when you have to sue on a clear promissory note, or when you're sued on a bogus claim. When a party has clear legal rights, she typically thinks she ought to have them enforced quickly.
- Relationships. Many lawsuits are between employers and employees, suppliers and customers, franchisors and franchisees, companies and shareholders, brothers and sisters. When parties see that they can preserve some part of their relationship by resolving their dispute, they've done something more important than one more jury trial would be.
Jury advocates might respond to that list with reform ideas to make jury trials shorter, or cheaper, or more final. That's fine. It's good that scholars and policymakers worry about whether jury trials can survive against these pressures. But for me and many trial lawyers, this is litigation as it is. It's a great privilege to be able to ask a jury for justice for a client. But our first responsibility is to the client, not to the jury, and that often means we choose another path.
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Note on the same theme: Back in May, the InHouse Blog had a post highlighting a Law.com interview with Mark LeHocky, general counsel of Dreyer's Grand Ice Cream. “I actively pursue a package of early dispute resolution tools," LeHocky began, and explained how and why.
(Photo by forklift at http://www.flickr.com/photos/forklift/744591491/; license details there.)
