Vol. 3, No. 11 (November, 1993)

VERDICT: ASSESSING THE CIVIL JURY SYSTEM by Robert E. Litan (editor). Washington: The Brookings Institution, 1993. 542 pp. Cloth $48.95. Paper $24.95.

Reviewed by Peter W. Sperlich, Department of Political Science, The University of California at Berkeley

Imagine you are visiting your old college and observe: There only are mandatory courses, with few exemptions being granted. Students have no real choice in what classes to take. Their interest and capabilities are not generally taken into account. They are given only minimal information about the content and structure of a class. Typically they are told no more than, say, that it is a course in inorganic chemistry or European history, likely to require five to eight weeks, and meeting all day, five days a week.

The instructor in charge provides little in terms of orientation and explanation. He does not present a series of organized lectures. Rather, he turns over the course to two or more advocates, who, in adversarial fashion, advance one-sided and contradictory arguments regarding the facts, rules, and theories of the subject matter. The advocates are assisted by experts, whose testimony also has a partisan hue. The course deals with a substantial number of specific issues -- many of them complex and technical -- for the comprehension and recollection of which the students will be responsible, and about which they will be examined. The relevant materials are not introduced by issue-by-issue, in logical order, in temporal sequence, or in any other organized pattern, but in a disordered and jumbled fashion.

There are no textbooks. The students are not permitted to ask questions, take notes, or discuss the materials among themselves or with others. At the end of the course the instructor offers some (not very comprehensible) guidelines for how to think about the materials and the advocates strongly urge the use of their favorite conclusions as answers for the approaching test. For purposes of the final examination, the students are divided into groups of six or twelve and told to discuss the exam questions among themselves. Each group must give a single set of answers. In the case of persistent disagreements, the group's responses are to be decided by majority vote.

Since no notes have been taken during the lectures, all questions must be answered from memory. There does exist a transcript of the class presentations, but the students do not receive a copy. They may ask that certain passages be read to them. This, however, requires re-assembling all participants in the classroom, and the students learn quickly that repeated request of this nature are not welcome.

The examination results are mixed. Some exam-groups do well, some produce incomprehensible answers, and some return clearly erroneous responses. Who or what deserves the blame for the inadequate performances? The students? Would it be proper to conclude on the present evidence that higher education, while a fine ideal, is a practical failure? And would it be proper to conclude that it is an irredeemably flawed enterprise, and that colleges should be abolished?

It is difficult to imagine that anyone would answer YES to these questions. Yet, a substantial number of YES votes can be obtained when equivalent questions are asked about juries and jurors. Such YES votes are not necessarily cast by persons unfamiliar with the conditions of jury work and the great need for change. Rather, they are cast by individuals whose jurisprudential theories do not value the participation of ordinary citizens in the adjudicative process, and who rank administrative efficiency and fiscal parsimony far above popular government and democratic institutions.

To preserve at least a semblance of the common law trial jury -- which, it seemed, was guaranteed to us by the Sixth and Seventh Amendment to the Constitution -- will continue to require extensive, persistent, and determined efforts. The calamities of WILLIAMS V. FLORIDA and the other jury size and decision-rule cases, and the threat posed by appellate court decisions denying trial by jury on grounds of a fictitious "complexity exemption," have served to

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activate jurists and scholars to defend and improve trial by jury. The book here reviewed is a major contribution to this endeavor. The various chapters were prepared initially for a 1992 conference on the civil jury system, sponsored jointly by The Brookings Institution and the American Bar Association. The majority consensus of the conference was that the civil jury trial should be preserved, even on complex cases. The contributions included in VERDICT reflect this position. While none of the authors regards the civil jury as a perfect institution, the tenor of the contributions is that it performs rather well -- whether we employ absolute or comparative standards of evaluation. Indeed, given the conditions of jury service, juries perform much better than one has any right to expect. Of course, there is room for improvement, and VERDICT presents many useful suggestions. Among them are providing better access to jury trials, improving the ability of jurors comprehend and recall evidence and legal instructions, and aiding the jury to formulate appropriate verdicts and awards. Attention also is given to such matters of concern as the various types of cost associated with trial by jury, scheduling of juror time, the function of alternates, and the juror selection process. Only one major reform possibility has been left unexplored by the present authors: the presentation of witness testimony in the form of edited videotapes -- a consideration of which was called for particularly in the discussion of repetition, redundancy, and out-of-order presentations. (289) The book has several distinct parts. After a brief introduction by the editor, there is a historical treatment of trial by jury (Chapter 2), followed by two chapters presenting alternative sets of objectives for trial by jury and evaluations of how well these objectives are being met in current practice. Chapters 5 through 8 deal with the attitudes toward trial by jury held by lawyers, judges, litigants, former jurors, and the public at large, as well as with the current state of knowledge about the work of the jury. Chapters 9 through 13 introduce most of the improvements noted above. Chapter 13 also contains the useful reminder that (hypothetical or actual) bench decisions are NOT the only or even the most appropriate way to assess the performance of juries. Judges also can err. The last two chapters are SUI GENERIS. Chapter 14 (to be discussed shortly) focuses on the use of peremptory challenges; Chapter 15 is a discussion of various dispute resolution alternatives.

VERDICT does not mete out a one-sided account of trial by jury. The strengths and the weaknesses of the civil jury receive attention. Possible negative as well as positive consequences of reform are carefully explored. A spirit of fair-mindedness and generosity characterizes most of the book. VERDICT, of course, has its share of dubious assertions and arguments. There is the resurrection of the jury-phobic tale that juries, above all, are responsible for the delays in civil litigation. (127-132) Strangely, this view is advanced in the context of findings that "only 2 to 4 percent of the disputes were ever tried to juries," (128) and that "96 to 98 percent of disputes settle out of court." (131) The author comments on the second set of data by writing: "The only way to significantly affect the level of litigation delay ... is to increase the rate of civil settlement." (131) A rate of 98 percent does not seem to allow much of an increase, and one wonders how much more quickly cases will move through the courts when the final "2 to 4 percent" of jury trials have been eliminated.

Some authors manifest an excessively sanguine outlook on the future prospects of trial by jury. The statement that "there is little likelihood that the jury will be seriously altered ..." (319) flies into the face of the loss in many jurisdictions of the traditional common law jury of twelve persons deciding unanimously. The author appears to be unaware of the attempts to create a complexity exemption to trial by jury, as well as of the intention (reported in VERDICT) to deny to the jury the right to find the facts of a case, when these facts involve legal concepts. (439-449) As is well known, the American trial jury once had the right to decide factual AND legal issues. In most jurisdictions, the jury has been deprived of the prerogative to decide legal issues. The new endeavor now seeks to divest the jury of a substantial part of its remaining competence: the right to

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decide the facts of the case. It also seems strange to discuss judicial suggestion that "there should be some limitation on the use of juries in minor cases involving small sums of money," (378-379) without considering the language of the Seventh Amendment: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ..." The minimum sum of twenty dollars, which surely should be increased, cannot be changed, it would seem, without a Constitutional act. There is a lesson here that should be made explicit: exact dollar amounts should not be written into fundamental documents intended for all times. Currency values change.

These, however, are minor quibbles. The real disappointment is the inclusion of Chapter 14: "Jury Service and Community Representation." First, it is not well done. For example, the author ignores important distinctions, such as the GENERAL fitness to be a juror (which is unrelated to race and gender) and the SPECIFIC fitness to serve on a particular jury (where this unrelatedness cannot be taken for granted). Second, the language of the chapter is intemperate. While acknowledging that peremptory challenges often are based on biases or preconceived notions about "nationality, business, religion, politics, social standing, family ties, friends ... and many more [such] matters" that shape a person (481), and while regarding such exercises of peremptories as harmless, or at least as tolerable, there is a dramatic shift in tone when preconceived notion about race or sex come into focus. Thus, the author holds that "tides of racial passion swept through the courtroom when peremptory challenges were exercised [against African Americans];" (465) indeed, that such peremptories are likely to have been manifestations of "race hatred." (466) Using peremptories to strike African American women is said to subject these women "to the most virulent double discrimination." (473)

Third, the chapter is largely an exercise in advocacy. The author's real purpose is to argue that BATSON V. KENTUCKY should be extended to WHITE WOMEN, because they also have been discriminated against. (473-474) The assumption is that whenever a peremptory challenge is exercised against a woman, it is because of her sex. The author seems to find it inconceivable that a woman might be challenged because she is a Presbyterian [challenging Presbyterians meets with the author's approval (478)], rather than because she is female. The discussion culminates in the argument that peremptory challenges should be permitted (without explanation) only when they are exercised against WHITE MALES: "If the juror [being challenged] is a white woman or a person of color, a neutral explanation would be required." (481) White males are the only citizens who may be struck from a jury solely for reasons of racial and sexual attributes. The reason that white males are denied the protection extended to everyone else is that, as far as the author seems to know, no white men ever have suffered discrimination, whereas all white women and all people of color invariably have been discriminated against -- a remarkably undifferentiated reading of American history.

The chapters are well written and the book has been competently edited. I found only one typographical (326) and one grammatical lapse (356). It was an error of judgment, however, to convert true footnotes (containing important substantive discussions) into endnotes. Since all chapters include a large number of notes, the necessity to move back and forth between the pages is constant -- and thoroughly annoying. VERDICT is a significant contribution to the on-going discussion about the future of the civil jury. The various chapters address not only the concerns of legal professionals and academics, but also of public policy makers and interested citizens. It is a book that deserves the widest possible audience.