Published in the Union Leader (10/25/2017)
There has been a lot of ink spilled decrying the public's lack of appreciation for civics education and the finer points of our democracy generally. We as lawyers might take special note of one of the democratic institutions we have an especial responsibility for, namely the right to trial by jury. Trial by jury is on life support and it does not look good. We should either decide to pull the plug, or commit to expending the thought and resources to bring it back to life.
When I first tried cases to a jury 20-plus years ago, I would remind the jurors that their service was part of a tradition that began in the 12th century with the King's acquiescence to the terms of the Magna Carta (partially true, albeit not exactly historically correct). I would tell the jurors that jury service had endured as a way to resolve disputes of all sorts for 800 years because it worked; that when six or 12 people come together with their common wisdom and good faith, they decide matters more fairly and effectively than could any single judge (or potentate). The "jury gets it right" part is still true, but I'm not so sure about the enduring part.
There were a number of times when either the local rules, or the judge before whom the case was tried, would let me speak to the jurors afterward. There were two constants that I drew from those interviews. The first was that the jury had gotten it right. The jurors might not have seen the case the way the lawyers or the judge saw it, but they invariably followed the law as they had been instructed and found the facts that squared their decision with those instructions.
The second theme that emerged from the post-trial interviews was the enthusiasm the now-excused jurors expressed at having had the opportunity to serve. Those same individuals who had days and weeks before been eager to find a reason to go back to their everyday pursuits would remark at how interesting the case had been and how glad they were for the experience (it would be wrong to say this was a universal reaction, but it was the predominant one).
Fast-forward to today. For tactical reasons, in the last several years, I've left the stuff about the enduring nature of the jury out of my closings. I have also begun to wonder whether jury service is an "enduring institution" or whether it has become an anachronistic anomaly. Some statistics might help to understand the point.
Although it is difficult to discern with any exactitude the percentage of cases that go to jury trial, it appears that as late as the mid-1980s, around 12 percent of civil cases were disposed of by trial, with a little less than half those trials to a jury. The percentage today? By all indications, in both state and federal courts, the chances of having a civil case heard by a jury is less than 1 percent. The statistics are not any better in criminal matters. The chance of having a civil case go to the jury for decision is about as great as a Grand Prix driver has of ending up dead each time he starts his engine. The infrequency of jury service, of course, translates into the unlikelihood of any particular citizen serving on a jury in any particular year.
There are those who would celebrate the death of the jury. You've heard it all. Juries are unpredictable. Juries are costly. Parties are better off solving their own problems. And the list goes on.
As lawyers, we should know better. Settling matters, pleading cases out, does not allow for the transparency that convinces the public of the fairness of the proceedings. We cannot really know the value of a case unless we have something to measure it against. Absent the crucible of trial, the government's enforcement of the law for its fairness and respect for individual rights is not tested. Needless to say, I don't have the answers. I do believe, however, that the Bar should look closely at the issue and work with the courts to find a way to reinvigorate the jury system. I'd hate to have it said that it was on our watch that an 800-year-old institution died of neglect.
Scott Harris is the current president of the New Hampshire Bar Association. Reprinted with permission of New Hampshire Bar News.