The Case for Trial by Jury in Complex Civil LitigationAuthor(s): Lex HawkinsSource: Litigation, Vol. 7, No. 1, TRIAL BY JURY (Fall 1980), pp. 15-18, 60Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758577 .

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The Case for Trial by Jury

in Complex Civil Litigation

by Lex Hawkins

The civil jury system is alive and well, despite the current assault on its competence to decide complex and lengthy cases. Of the 11,655 civil trials completed by federal dis? trict courts in the year ending June 30, 1979, 8,240 were bench trials and 3,415 were jury trials. There were only 31

jury trials that lasted over 20 days, of which 9 were per? sonal injury cases, 8 antitrust, 5 contract, 3 civil rights, and the balance in miscellaneous categories. The civil jury system consumes less than 1 percent of the federal judicial budget. We should not tamper with an institution that has served us so well on the pretext of its inability to function.

Others have discussed at length whether the Seventh Amendment mandates the right to trial by jury even in

complex and protracted cases. See, e.g., In re U.S. Fi? nancial Securities Litigation, 609F.2d411 (9th Cir. 1979), cert, denied sub nom. Gantv. Union Bank, 48 U.S.L.W. 3698 (U.S. Apr. 28, 1980) (Seventh Amendment requires right to jury trial in such cases); In re Japanese Electronic Products Antitrust Litigation, No. 79-2540 (3d Cir. July 7, 1980) (Seventh Amendment does not require right to jury trial in such cases). My point is that a jury is well-suited to decide complex and protracted civil cases. The shortcom?

ings of the bench and bar, not the jury, create the problems associated with jury trials in these cases. Lawyers and

judges can make the jury system work just as well in com?

plex cases as in simple cases if they use effectively the pro? cedural and substantive tools at their disposal.

Public participation in the judicial process is essential to continued popular acceptance of judicial decisions. The

jury plays an important role in bringing about that accep? tance. Judge Irving Kaufman observed that there can be no universal respect for the law unless all Americans feel that it is their law?that they have a stake in making it work. When large classes of people are denied a role in the

legal process?even if that denial is wholly unintentional or inadvertent?there is a sense of alienation from the

legal order. Kaufman, A Fair Jury?The Essence of Jus? tice, 51 Judicature 88, 91 (1967).

Mr. Hawkins is a partner in Hawkins & Norris of Des Moines, Iowa.

The complex case often presents questions of great social and economic impact upon the public. Monopoliza? tion, price fixing, and other anticompetitive practices often directly affect the consumer. Who is in a better posi? tion to determine the public policy questions involved in such conduct than a jury representing the broad commu?

nity interest?

Despite the importance of the jury in our political and

legal tradition, critics contend that it has no place in com?

plex or protracted cases. They claim judges are better able to understand and decide these cases. They also argue that

jurors are biased against lengthy cases. In addition, the use of a jury supposedly prolongs a trial, delaying final determination of the case. These allegations simply do not survive scrutiny.

The most vigorous charge against the jury is that its members lack the education, experience, and ability to handle complex matters. Critics doubt the ability of inex?

perienced citizens to determine complicated antitrust ac?

tions, securities suits, and the like. But the real question should not be, is the jury the perfect arbiter, but, is a judge any better? Is he any more just? If the critics were right, there should be some evidence that judges and juries reach different results. The available information does not sup? port this hypothesis.

Nationwide Survey For example, Kalven and Zeisel's nationwide empirical

survey of trial judges (covering 600 judges and 8,000 jury trials) obtained reports on actual cases tried to a jury, com?

paring the jury's verdict in each case with the trial judge's corresponding statement about how he would have de? cided the case. There was 80 percent agreement between the judge and jury in criminal cases, and 79 percent agree? ment in civil cases. In the criminal cases, the difference seemed to stem from the jury's tendency to be somewhat

more lenient than the judge. In personal injury cases the Kalven and Zeisel study disproved the popular notion that

juries are more pro-plaintiff. Instead, when the judges dis?

agreed with the juries, there was a fairly equal split be? tween plaintiff's and defendant's verdicts. Kalven and

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Zeisel also found the same level of disagreement in cases that judges classified as difficult to understand as in cases that judges thought were easy. While they found a wide

variety of explanations for the cases in which there was

disagreement, the judges virtually never offered as a reason the juries' inability to understand the case. See H. Kalven, The Dignity of the Civil Jury, 50 Va. L. Rev. 1055(1964).

The real focus of the debate about the jury's role in com?

plex cases should be on fairness. Every litigant is entitled to a fair, impartial fact finder, unfettered by prejudice, bias, or prior leanings. Are litigants better off with a judge than a jury? Do they receive a higher quality of justice from

judges than from juries? No one has yet demonstrated that

judges generally are superior fact finders compared to

citizen-jurors, who bring their own knowledge and ex?

perience to bear on a case. G.K. Chesterton stated, "I would trust twelve ordinary men, but I cannot trust one or?

dinary man." This is the core reason for the jury system. Even a severe critic of the jury system, Judge David W.

Peck, has accepted this view:

I do not share the feelings which some lawyers and

judges have that jury verdicts are not trustworthy on the merits. Jurors are extremely conscientious and seldom can it be said that their verdict falls outside of the bounds of fairness and reason_Peck, Do Juries

Delay Justice, 18 F.R.D. 455, 457 (1956). Too often critics of the jury system overlook the phe?

nomenon that Kalven has labeled "collective recall." Kalven, supra at 1067. Although no one juror may remem? ber everything, different jurors remember and share dif? ferent aspects of the trial and different perspectives. The combination of these recollections and understandings makes the jury as strong as its strongest link.

Sentencing procedures in federal courts belie the notion that judges apply legal rules in factual determinations

more consistently than juries. All of the sentencing studies show enormous differences among the punishments meted out by the federal courts to persons of similar

backgrounds convicted of similar crimes. There simply is no empirical data to support the conclusion that a single judge is more competent or qualified than a jury to decide the complex case.

Juror Prejudice Juror prejudice against lengthy service is another basis

for attacks upon jury trials. Critics claim that the jurors' absence from their employment and families for long periods of time, with the accompanying financial burden, makes them hostile to complex and protracted litigation. The data does not support this conclusion. Instead, as Kalven found, service on a jury is a major and moving ex?

perience in the lives of most jurors. Kalven, supra at 1062. In my own experience, citizens have not been reluctant

to serve in lengthy jury cases. If jurors are first told honest?

ly how long the trial will last, they neither complain nor at?

tempt to excuse themselves from serving. For example, in a case projected to last four to six months, the court

brought in a panel of over 100 veniremen, expecting a large number to say they would be unwilling to serve. A jury of 14 was chosen from the first 30 veniremen, with only 4 ask

ing to be excused because of trial length. The trial lasted seven months; only one of the 14 did not make it to the end. The jurors who served in that complex case still hold an an? nual reunion (the lawyers are not invited); they consider their service to be one of the high points of their lives.

There is no study to date concluding that judges exer? cise less prejudice in complex litigation than juries. To the

contrary, the collective reasoning and debate of the jury has been found to dilute, equalize, and cancel out the prej? udice of any one juror. This safeguard is not available where a judge sitting in the solitude of his chambers makes a finding of fact tempered only by his own background and

experience.

Judges, despite their best efforts, can no more consis?

tently escape their backgrounds than can jurors. Kalven and Zeisel found that former prosecutors who became

judges are more prone to convict than those who had not held such office. H. Kalven & H. Zeisel, The American Jury 471 (1966). In a jury, however, "the group nature of the jury decision will moderate and break eccentric views." Id. at 498. "Safety in numbers" minimizes the

possibility of improper influence or corruption on the fact finder.

Another criticism leveled against the jury in the pro? tracted case is that it is not a fair cross section of the com?

munity. Some claim that the prospect of a long trial elim? inates many potential jurors from the business commu?

nity, or others who cannot afford, or are unwilling, to serve for extended periods of time. While this criticism at first blush seems to have some merit, the fact is that the jury need not be a mirror of the community, but only reflect a fair cross section of the community. 28 U.S.C. ? 1861; United States v. Ross, 468 F.2d 1213,1217(9thCir. 1972), cert, denied, 410 U.S. 989 (1973). In any event, a trial to the court does not overcome the objections. The real solu? tion for assuring that a jury represents a fair cross section of the community is for judges to be more stringent in not

excusing jurors. Other critics claim it is impractical to maintain a viable

jury over a long period of time because of death, disability, sickness, or similar reasons. This potential problem can

easily be avoided. For example, by agreement of counsel a

jury of 14 was selected in SCM Corp. v. Xerox Corp., 77 F.R.D. 10 (D. Conn. 1977), with the understanding that no one would be designated as an alternate. All would deliberate on the verdict and those encountering illness or other unforeseen grounds for excuse would be excused, with the trial continuing so long as six jurors were available for deliberation.

The next indictment of the jury trial is its delay and cost. Some have estimated that a jury trial takes about 40 per? cent longer than a trial to the court. However, a study by Hans Zeisel and Thomas Callahan concluded that the use of a bifurcated liability and damages trial would save ap? proximately 20 percent of the current trial time, or about half the savings to be expected from the abolition of the

jury. Zeisel & Callahan, Split Trials and Time Savings: A Statistical Analysis, 76 Harv. L. Rev. 1606 (1963). In

any event, a quicker trial, even if it occurred, is a poor reason for tampering with the jury system in view of its

quality as an adjudicator.

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Those who claim that juries delay trials argue that jury trials are longer because of the time spent in voir dire; that

opening statements and closing arguments tend to take

longer; that judges and counsel must take greater pre? cautions with the introduction of evidence; that motions for judgment notwithstanding the verdict and for new trial take longer; and that jury trials produce more appeals than bench trials.

Exercise Choice While voir dire does lengthen the jury trial, it also

enables litigants to exercise some choice in the selection of the fact finder. The alternative is to accept a trial to the

judge alone. Judge shopping is frowned upon and prohib? ited in most jurisdictions. Judge recusal is a dangerous, expensive, and time-consuming procedure. It requires mandamus proceedings in the event the judge refuses to recuse himself. SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977); Scarrella v. Midwest Federal Savings

& Loan, 536 F.2d 1207 (8th Cir.), cert, denied, 429 U.S. 885 (1976).

For the successful trial advocate, opening statements and closing arguments in the complex case are equally long regardless of the fact finder. In fact, most good trial

lawyers hone their opening statement and closing argu? ment more precisely for a jury's consumption than for the court's.

Bench trials may, in fact, take more time than jury trials. The presence of the jury forces both the court and the advocates to analyze and present the case clearly. The rules of evidence are more strictly followed, resulting in a more abbreviated record. Judge Patrick Higginbotham argues:

I have found that as counsel drop their evidentiary antennae, they also tend to close their sensitivity to

questions of relevance; correspondingly, the mar?

shalling of proof so essential to clarify suffers. Trial to a jury imposes a fierce discipline on the advocates.

Higginbotham, Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 Tex. L. Rev.

47, 54(1977). Moreover, extended trials to the court often become

fragmented by interruptions for other court business and the convenience of counsel. The presence of the jury in? duces full trial days, shortens the recesses, and minimizes

personal interruptions from bench and bar.

The criticism that motions for judgment notwithstand?

ing the verdict, or motions for new trial are lengthy proce? dures not necessary in a bench trial is ludicrous. Parties dissatisfied with a court's findings of fact and conclusions of law can and do file comparable motions to amend, Fed. R. Civ. P. 52(b), or motions for a new trial, Fed. R. Civ. P. 59. These motions usually meet with less success in bench

trials, where the judge reviews his own handiwork, than in trials where the juries have rendered improper verdicts. Posttrial motion practice lessens appeals of jury trials, whereas it has virtually no effect on appeals in nonjury cases.

The time from the submission of a case to the fact finder until the decision is often very important. Seldom, even in

protracted cases, is a jury out over two weeks. On the other

hand, the preparation and issuance of findings of fact and conclusions of law by the court often consumes consider? able periods of judicial time. Decisions are delayed for

months.

Some say that jury trials produce more appeals than bench trials, yet trial judges like Judge Higginbotham have found that the marked increase in appeals from bench trials is a major factor in the rapid growth of the workload in the appellate courts. See Higginbotham, supra, 56, 58.

In short, some delay is inherent in any fair-minded

system of justice. Trial by jury does not conflict with the

goal of speedy justice. See Pernell v. Southall Realty, 416 U.S. 363, 385 (1974).

Finally, some jury opponents point to the specter of the

hung jury. The hung jury, however, is actually a plus for the jury system. There are some factual situations that do not lend themselves readily to an absolute decision of right or wrong. When a trial judge is faced with such facts, the

only alternatives are to sustain the claim or reject it. The

The jury performs a valuable function in a

complex trial, even when there is a hung jury.

trial court then will state the findings of fact to support absolutely the conclusions of law reached. The uncertainty of the actual facts of the case is eliminated through this

shading. The result is a set of findings and a judgment that are likely to be sustained on appeal. One side absolutely wins; the other side absolutely loses. But the ability of the

parties to compromise an uncertain case after trial is sub?

stantially eliminated.

On the other hand, when the jury cannot reach a deci? sion on a claim, the jury gives the parties important infor?

mation. Neither side's case is as good as it might have

thought. With proper encouragement from the trial

judge, the parties should then seriously consider com?

promising the case. This has often been the result. If

justice is to be the end result of our trial system, then the

jury performs a valuable function in a complex trial, even when there is a hung jury.

If the jury has no inherent inability to cope with complex cases, what triggers problems in complex jury trials? I believe it is the failure of judges and lawyers to fulfill their duties. Trial procedures often obscure rather than clarify the issues in the case. The parties and the court must act

aggressively, using all available techniques, to make the

jury system work. Courts too often do not construe and implement Rule 1

to secure the just, speedy, and inexpensive determination of actions. Abuse by counsel of the judicial process is

widespread in complex cases. Unjustified demands for

discovery and refusals to provide discovery drag out litiga

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tion and drive up its cost. See Renfrew, Discovery Sanc? tions: A Judicial Perspective, 6 Litigation No. 2, at 5 (Winter 1980). Courts rarely use Rule 37 or 28 U.S.C. ? 1927 to impose sanctions to control litigation. They must use the rules and statutes and their inherent powers, Link v. Wabash Ry. Co., 370 U.S. 626, 630-31 (1962), more

vigorously to dispose of the complex and protracted case

fairly and quickly. Lawyers and the trial judge can use the tools of The Manual for Complex Litigation to synthesize even the overwhelmingly complex case into a coherent

theory. Trial courts must use Rule 16 more aggressively to sim?

plify issues, obtain admissions of fact, stipulate about documents, and avoid unnecessary proof. Counsel should utilize Rule 12 in pretrial proceedings to consolidate and

simplify the adversary's pleadings. Rule 56 can eliminate issues by partial summary judgment. Lawyers can compile extensive fact stipulations and introduce them into evi? dence for the jury's benefit. The admissibility of documen?

tary evidence should be stipulated or determined at a

pretrial conference before the jury trial. Separate trials should be used when appropriate. See Fed. R. Civ. P. 42(b) and 28 U.S.C. ?2072.

The Supreme Court has encouraged the use of a master in complex cases. See Dairy Queen, Inc. v. Wood, 369

U.S. 469(1962). The appointment of amaster pursuant to Fed. R. Civ. P. 53(b) to assist the jury with highly technical matters, such as complex accounting procedures, is a modest inroad into the jury's traditional sphere preferable to a complete denial of the Seventh Amendment right.

Courts in protracted cases should monitor the evidence with a jaundiced eye to eliminate cumulative material. A court should exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issue, misleading the jury, or

by considerations of undue delay, waste of time, or need? less presentation of cumulative evidence. Fed. R. Evid. 403. Indeed, one of the ultimate policies of the Federal Rules of Evidence is to eliminate "unjustified expense and

delay." Fed. R. Evid. 102. The prodigious feats of memory that critics allege are re?

quired of jurors in protracted cases can be aided consider?

ably by permitting the jurors to take notes, on the same basis as the court and counsel.

Preliminary instructions on the basic elements of the law and a preliminary statement of the issues should be

forged in the pretrial conference and submitted to the jury before it hears any evidence. It makes no sense for the jury to listen to complicated fact presentations in a legal vacuum.

The trial attorney's task is to assimilate a complex mass of information into digestible form, understandable to the uninitiated. Attorneys do a better job of garnering and

distilling evidence in a complex case to a jury than to a

judge. Of necessity, they must smelt the voluminous and

complex materials into a nugget that will be attractive and understandable to a jury and eliminate much of the slag that would not be filtered out in a bench trial because of the more permissive rules of evidence that prevail there.

Lawyers should be more creative in developing summa?

ries, charts, and other "short form" explanations of voluminous underlying data. The jury can understand

them, and the Federal Rules of Evidence authorize them. See Fed. R. Evid. 1006. Lawyers should not object to hav?

ing a jury rely on summaries. Corporate executives make

major decisions each day on the basis of summaries pro? vided by their experts. Trial lawyers and witnesses should

give the jury comparable executive briefings to enable

jurors to assess the probabilities of competing inferences and reach a just decision.

Early discovery about an adversary's computerized files is often the key step in preparing good summary data. A

computer expert then can organize relevant computerized data to collect and concentrate it into a palatable form for the jury. The computer's output can be transformed into

printouts, charts, and graphs that the jury can understand

easily. The contents of voluminous writings, recordings, or

photographs that cannot conveniently be examined in court may also be presented in charts, summaries, or calculations. Three-by-five-foot blow ups or enlargements of key documents, charts, and the like are of immeasur? able value. These enlargements should be placed on fiber board and used as a reference whenever a witness is exam? ined about their contents. This procedure allows the jurors to gain f amiliarity with the contents of the documents.

The opposing party's right to examine underlying data before a summary can be entered into evidence provides an

ample safeguard against misleading summaries. It also allows him to gain ammunition for cross-examination. The only right that is abridged by introducing summaries is the "right" to confuse the fact finder with a mass of irrelevant data.

Simplifying the issues and proof places a great burden on the trial lawyer. The old adage applies here: "I'm sorry I wrote you such a long letter, but I didn't have time to write a short one." Convenience to the lawyer is not the basic consideration of our justice system. Lawyers who

practice by the pound (the thicker the file the greater the fee), and use this technique to weight the record, should be

subject to sanctions. The following example helps illustrate how a jury can

decide the complex case. A civil case involving four counts (fraudulent inducement into contract, breach of contract, tortious interference with contractual relations, ?nd mis?

appropriation of trade secrets) was tried to a federal court

jury in a moderate-sized Iowa community for over seven months. The case involved computerizing thousands of documents, 125 days of depositions in 18 states, and inter?

preting technical drawings, net worth valuation of stock, and other highly complex technical problems.

The jury was able, through the use of experts, drawings, charts and summaries, to sift the evidence, distinguish and apply the law to the four causes of action, and reach a verdict that denied the fraudulent inducement claim, awarded damages for breach of contract and tortious in? terference with contract, and hung on the misappropria? tion of trade secrets. That claim was settled between the

parties, and the verdicts were paid. The jury took two weeks to deliberate.

The alternative to an absolute right to trial by jury is an ad hoc determination of the right by the trial judge. What

type of guide could be promulgated to ensure uniformity in (Please turn to page 60)

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divorce. The wife and her mother had been affronted, and they insisted on a full-blown jury trial. They intended to

drag him into court before twelve

jurors, good and true, and prove that he was a blackguard. He wanted to avoid this and suggested to her

lawyers that they simply take his

deposition and not subpoena him to court. They replied that their client insisted that he be subpoenaed.

Whereupon, he wrote these same

lawyers a letter, the general tenor of which is as follows:

Inasmuch as you refuse to han? dle this whole distasteful matter

discreetly by simply taking my deposition, let me suggest a rea? sonable alternative. I will make an affidavit in which I will duti?

fully list all the occasions on which I have been a miscreant and the amount of money spent pursuing such evil forms of relaxation from the rigors of a trial practice. I will feed the

material to E.F. (one of his wife's

lawyers), and he may ghost write it so as to give it maximum titilla tion value.

Susan (the wife) will be at liberty to add to the affidavit anything that she chooses. She may even have to resort to the notes of Dr. O. (her psychiatrist) and this should prove most helpful since she has journeyed to Dallas once a week for the last three years to recount to him all my misdeeds.

When this affidavit is completed, it may be incorporated in and

made a part of the divorce decree for all the world to see. Susan will be at liberty to read the affidavit to as many of her friends as often as she chooses. Her mother may have her very own copy. It may be a continuing affidavit.

By this I mean that anytime in the future, long after the divorce decree has been entered, Susan will be at liberty to go to the courthouse and add to the affi? davit anything that occurs to her which she has previously left out.

This availed him nothing. He was forced to attend the trial. But as you might suppose, he carried it off well.

I do not mean for any of the forego

ing stories to reflect upon any member of the West Texas Bar. In the main, they were and are as fine a group of men as you would ever expect to find. Their level of professional compe? tence in the courthouse was and is the

equal of any group of lawyers in the world. There was a spirit of camara? derie among them that is not present in the big city. I admire them, respect them, and miss them very much.

Against

Jury Trial

(Continued from page 22) F. Supp. at 942. To the extent that

juries curb judicial discretion, how?

ever, the judicial power to grant directed verdicts and judgments not?

withstanding the verdict severely limits the jury's power.

Any trial lawyer worth his salt can recount war stories demonstrating the Hobson's choice between a trial to an

uncomprehending jury or to a biased

judge. The solution is to choose

neither; a fairer, more certain, and more reliable alternative should be

developed for trying complex cases.

Chief Justice Burger has suggested one possible alternative. He proposed that the parties waive a jury trial and

stipulate to trial by a panel of three district court judges. (Remarks of

Burger, C.J., before the Conference of Chief Justices (Aug. 7, 1979).) Under the current, murky statutory scheme, this solution would be feasi? ble if the chief judge of the district court agreed and designated a special panel; mere stipulation would not be

enough to bring it about.

Congress should formalize a sim? ilar procedure for use in specific types of cases under the antitrust, securi?

ties, or patent laws. If a party re?

quested a jury trial in such a case, any other party could move for transfer to a single judge, if both parties agree; or if not, to a special panel of three

judges to be assigned by the chief

judge of the district. In deciding whether to make such an assignment, the presiding judge would take into

account the complexity of the case, the probable length of the trial, and the nature of evidence to be offered.

The special three-judge panel would deal only with complex litiga? tion; it would sit as a specially con?

stituted Article III court. It would have a number of advantages. It would develop techniques for dealing with complex litigation. It would need less time to learn the applicable law and the methods for handling big cases. It should also save precious judicial resources. By expediting trials, it should make up for having three judges hear the same case. Fur?

thermore, unlike current multi-judge practice, various aspects of discovery and other pretrial proceedings could be assigned to a single judge. This

process should add efficiency to ac?

curacy. Only one judge would be needed to cover most of the problems inherent in big case litigation. Three

judges would be used only at the trial itself.

The jury system does not work in

complex litigation. The question should not be whether juries should be retained, but what sort of tribunal should replace them.

For

Jury Trial

(Continued from page 18) the trial judge's decision to deny a jury trial because of complexity? Would the standard be unmanageable? See

Radial Lip Machine, Inc. v. Interna? tional Carbide Corp., 76F.R.D.224, 228 (N.D. 111. 1977). What type of appeal phenomenon

would result? Would there be an ap? peal as a matter of right prior to trial? 28 U.S.C. ? 1292(b); In re Financial Securities Litigation, 75 F.R.D. 702, 715 (S.D. Cal. 1977); In re Boise Cas? cade Securities Litigation, 420 F.

Supp. 99, 105 (W.D. Wash. 1976). Instead of worrying about these

issues and tinkering with the jury system, lawyers and judges should

spend more time and energy making the system work.

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