The jury, as the conscience of the community, must be permitted to look at more than logic.

United States v. Spock, 416 F.2d 165, 182 (1969)

The campaigns that ended in November, 2012, by most estimates, consumed over $9 billion in contributions. During the two years leading up to the election, about $5.75 billion was spend on lobbying the federal government. Is it any wonder that most Americans feel that government is not working for them? Public approval of congress is below 20%. Money, influence peddling, gridlock – doesn’t all of that make you wish that there was an institution of government immune to such corrupting elements? When your life, freedom, property or future are at issue, don’t you hope that the governmental agency empowered to decide your fate is subject to strictly enforced rules prohibiting monetary contributions and outside efforts to influence its decisions; rules designed to eliminate any prejudice that would deny you a fair hearing? We have such an agency. It is the American jury.

The role of the jury was not a mere footnote in the creation of the United States. The denial of trial by jury was a grievance listed in the Declaration of Independence against King George III. A significant factor in the opposition to the ratification of the Constitution was the belief that the role of the jury, especially in civil trials, would not be preserved. Thus, one of the compromises that led to the ratification was the promise of a Bill of Right that would include the guarantee of trial by jury in both criminal (Amend. VI) and civil (Amend. VII) trials.

The quality of Hollywood depictions of civil jury trials has never approached the levels of Twelve Angry Men or To Kill a Mockingbird. The debate on the role of the civil jury in 1787 was heated, but basically limited to the Federalists – those advocating for the ratification the Constitution – assuring that the new constitution would not deny civil jury trials while the Anti-Federalists countering there was no such guarantee. However, in recent times the public attitude toward juries has been influenced by another form of passion and prejudice. Beginning in the early 1980s the “tort reform” movement has advocated, and often achieved, significant changes the body of law broadly titled “tort,” the law dealing with compensation for negligent injury. Through a number of organizations and corporations, billions of dollars have been poured into political and media campaigns. A comprehensive analysis of the tort reform movement is beyond the scope of this brief article. We will limit the discussion to the aspect of the movement that has attacked the jury system.

As a part of the carefully crafted terminology of tort reform, juries become “runaway juries” and “frivolous lawsuits” result in generous awards. The movement cast the jury as an agency devoted to simply handing out money regardless of the merits of the case. An entire literature of “jury outrages” was created, generally consisting of either outright fiction or misrepresentation of the cases is question. The alleged jury outrages, repeated over and over, were perceived as solid evidence that juries cannot be trusted to render reasoned verdicts on injury cases.

The campaign rhetoric suggesting that juries are collections of apparent simpletons who give away money not only flies in the face of the facts, but if analyzed at all is an insult to our citizens. Juries, after all, are citizens called upon to perform a duty that is the purest form of participatory democracy. To suggest these citizens are easily swayed to give away undeserved money, by logical extension, suggests that citizens cannot be trusted to self-govern. Ironically, many politicians who sign on to the tort reform movement attack the integrity of the jury – the very people they hope will vote for them.

While the jury in a criminal trial stands between the power of the government and the individual, the civil jury is frequently the body of citizens that determines justice between the most powerful private organizations and individuals. When someone is injured in an automobile accident, the injured person may name the driver of the other vehicle as the defendant, but it is almost always an insurance company that is the real defendant. Where a defective product causes injury, an individual citizen may be taking on a multinational corporation to seek compensation for the injury. In an age when wealth has been increasingly concentrated in a small percentage of the population, wealth translates to power. The wealthy are accustomed to being able to influence the government. In the last election an avalanche of money poured into the effort to shape our political landscape. After the election, those financial forces evaluated their army of lobbyists and strategized how to influence the new office holders. It is no wonder that the respect for Congress is at an all time low. The average citizen does not perceive they are served by a government that is swamped with such money.

While the last election saw the effort to use that money to attack judicial impartiality, the ability of money to influence jurors is far more difficult. Since jurors are randomly drawn from the citizenry, they cannot be identified to influence. The rules strictly prohibit lobbying jurors during a trial. Yes, jurors are subject to the broad public campaigns that imply awarding an injured party fair compensation is irresponsible. But once in the courtroom jurors are sworn to abide by the rules and consider only the evidence before them. Jurors are human. They can render bad verdicts, just as we all can make mistakes. But most lawyers and judges will tell you that the collective wisdom of juries is more often than not very impressive. But most of all, juries are the ultimate expression of a democratic society. One Anti-Federalist, in his attack on the proposed constitution, complained that “TRIAL BY JURY, that sacred bulwark of liberty, is ABOLISHED IN CIVIL CASES . . . .” Even in that agrarian age, the founders realized that liberty is more than freedom from governmental tyranny. It is also the ability, under the law, to stand equal to the rich and powerful in our society. When someone tells you than juries are not responsible, remember that it is the jury of citizens, and an impartial judge, that provides an opportunity to stand on equal footing with a giant multinational corporation. You might even reply that you are among those that make up the juries of this nation. Above all, you should be angered that this fundamental protection of our freedoms is attacked by those who enjoy the privileges of this great society.

There is another aspect of the jury that is rarely discussed. The fact that someone is injured in an accident does not automatically mean they are entitled to compensation from someone. Under Florida’s No Fault Auto Insurance law drivers are required to carry $10,000 in personal injury protection insurance. But that law also dictates when a driver may sue the other driver for injuries sustained in an auto accident (We will analyze that law in a future blog). In most cases the injury must be due to the negligence of someone else. In the case of an automobile accident, negligence – a wrongful act – is often relatively obvious. Driver A ran a stop sign and injured Driver B. However there are many cases where the wrongful act is less obvious. What if the speed limit is 45, but there is fog? What is the safe speed under such circumstances? When a building collapses, determining whether the builder, the architect or the constructions materials was at fault can be complicated and complex. In these and many such situations, the main question is what a reasonable person would do in similar circumstances? It is the jury’s role to serve as the agency of government that determines what reasonable conduct on a case by case basis is. Those who decry the role of the jury in these disputes have not carefully considered the alternatives. The concept of the “reasonable person” in civil trials is critical to a free society, but rarely discussed. That will be the subject of an up-coming blog.