November 23, 2007

There Is No Solution in Sight Over How to Improve Our Right To Trial by a Jury of Our Peers

Article reprinted with permission from the July 1, 1995 edition, page 35
Bicycle Retailer and Industry News

A Legal Viewpoint

By Steven W. Hansen

There have been a number of sensational trials and verdicts recently. The acquittal in the Rodney King beating trial. The hung jury in the Menendez murder case. The $600,000 jury award over a cup of hot McDonald's coffee. And, in our industry, the memorable Johnson v. Derby verdict. The antics of the O.J. Simpson jury are now in the spotlight as infighting and alleged juror misconduct threatens to cause a derailment of this multi-million dollar trial.

As a response to that case, the California legislature is considering abandoning unanimous verdicts in criminal cases. In Los Angeles, so many potential jurors are avoiding jury service that Los Angeles County’s presiding judge declared a crisis and is initiating jury system improvements. The judge cites popular cases as accelerating the public's distrust of the system. Jurors are attracting more attention than the defendants these days.

Mock Jury Trial. I had the opportunity to attend an ASTM conference in Denver last month (June 15 issue: ASTM Offers Insight Into Legal Issues) and watched a mock jury trial. The trial pitted a helmet manufacturer and street hockey association against an attorney representing a young paraplegic injured in a game.

There were at least 20 people on the "jury," all of whom were industry representatives, trainers and coaches. Others in the room made up an “unofficial" jury. The manufacturer presented a strong case, but some felt the manufacturer was responsible for the youth's injuries. The association fared even worse. With such a favorable jury, how could the defendants lose? Human nature. We all have hidden biases. It is hard to figure out how someone will react to an issue because of their occupation or which political party they belong to.

A Jury of Our Peers. We all expect to be tried by a jury of our “peers." But corporations have no peers, which is one reason product liability cases can be so difficult when presented to a jury. Most corporations would like to have small business owners or board members on a jury, but that seldom happens. While a jury of peers should constitute a cross-section of the community, that is hardly what is left after attorneys get done with jury selection. Look at what jury consultants do and the excruciatingly detailed selection process used in the Simpson case. In that case, attorneys claimed a "fair jury" was all they wanted. What both sides really wanted was a jury biased in their favor. The same is true in product liability cases.

Trial by Jury Is a Right. The right to a jury trial was guaranteed by the7th Amendment. Originally, it was granted only to those accused of serious crimes. Over the years, it has been broadened to encompass everything but parking tickets. Critics argue that some types of cases, including some product liability cases, are too complex for jurors. This may be true. Jurors often have difficulty understanding jury instructions. Jury verdicts, favorable and unfavorable, can become poor indicators of proper corporate behavior.

Congress has concluded that the solution to the problem is to change the laws concerning product liability. But that is no panacea. How can we expect jurors, who fail to understand the law now, to understand the complex changes sought by Congress?

Jurors also are likely to ignore the law completely if they so choose. Examples of this are occurring in California in response to the state’s” three strikes" legislation. The Fully Informed Jury Association (FIJA) has been mailing fliers to empanelled jurors telling them it is their duty to fight bad or unfair laws by voting one way or the other and ignoring judicial instructions.

Taking Power Away. The solution appears to be to take decisions away from jurors. But lest we forget, it has been the judges who have created and refined product-liability law. Judges also decide cases on appeal. Judges are afraid of taking power away from juries-that can lead to reversals and re-trials. And many attorneys I talk with agree that there are times when they would rather defend a case before a jury than a judge.

I have no solution. But I do know that large verdicts are not a direct result of decisions made by plaintiffs, attorneys, judges, legislators or defendants. The problem is with your customers, neighbors, mechanics and perhaps your relatives. They are the ones who give away millions, redistributing the wealth of businesses to those who claim they deserve some of it. They are the ones who ignore common sense and responsibility for their own actions. So the next time you want to be angry at someone, please don’t take it out on your lawyer.

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