Posted On: August 4, 2011 by Paul Mark Sandler

Protect trial by jury by limiting pre-trial discovery

As a longtime Baltimore trial attorney, I know that trial by jury is a unique and valuable feature of American government. In recent weeks, juries have come under a storm of criticism from members of the media following the Casey Anthony verdict. This criticism overlooks the historical importance of trial by jury, and the vital role that juries play today. Media criticism, however, is not the most serious threat to the continued existence of jury trials. Far more worrisome is the proliferation of costly pretrial procedures, which deter litigants in civil matters from pursuing their cases to trial. Without reform of these procedures, trial by jury is in danger of becoming a mere historical memory.

While the result in the Anthony trial was unpopular, it was not unreasonable. There was a sufficient factual basis for the jury to find the defendant not guilty based upon reasonable doubt. Even if the jury in the Anthony trial had erred, however, one aberrant verdict could not justify limitations on jury trials. Most statistical analyses report that jury verdicts on the whole are fair, reasonable, and appropriate.

History has shown the vital importance of juries to a free society of laws. While the ancient Egyptians and Greeks employed juries, our present system can be directly traced to the reign of King Henry II in 12th Century England. Henry sought a more rational method of resolving legal disputes than gruesome ordeals or trials by combat between the parties. He chose to place responsibility for fact finding in the hands of bodies of twelve individuals - jurors. The Magna Carta explicitly recognized a right to jury trial in 1215, after a group of nobles forced King John to accept limits on the authority of the crown.

English colonists brought juries to America, where the right to a jury trial became so important that the Declaration of Independence, in listing the colonists’ grievances, criticized George III, “for depriving us in many cases, of the benefits of trial by jury.” Since most colonial judges were appointed by the crown, colonists had relied on juries of their peers to defend them from arbitrary imperial laws.

After the colonies won their independence, trial by jury was a major issue in the debates over the formation of a new government. Ratification of the US Constitution almost failed due to its lack of an express requirement of civil juries. One distinguished Maryland attorney, Luther Martin, pushed hard for a jury trial requirement, which was eventually enshrined in the Seventh Amendment. Many states, including Maryland, have enacted similar provisions in their constitutions.

Juries are no less important today. In criminal cases, they serve as a check on overzealous prosecutions. In civil cases, jury verdicts advance the rule of law and influence social policy. For example, a verdict in a medical malpractice case might lead healthcare providers to render better treatment. And jury service is one of the few means, other than voting, that most citizens have for participating in government.

Conducting jury trials in the digital age poses new challenges, but these can be overcome with proper measures. While a juror may be tempted to use the internet to improperly research or discuss the trial, appropriate warnings from the court can deter such behavior. In a high-profile case, the court can “sequester” jurors, that is, require them to stay in a hotel out of contact with the outside world.

Unfortunately, other modern developments can prevent litigants from even bringing their disputes before a jury. In federal courts, less than one percent of all civil cases end in a jury trial. Since few lawyers have had the experience of litigating a jury trial, lawyers may choose to settle a case rather than risk a jury trial, to the detriment of their clients.

The primary reason for this state of affairs is the skyrocketing cost of litigating a civil case. Most, but not all, of this cost is attributable to pretrial discovery. Discovery is the stage of a case in which the parties, through their attorneys, request documents from each other, exchange questions (interrogatories), and conduct depositions (interviews of potential witnesses). In depositions, attorneys can spend hours arguing over the propriety of a question. Document requests are also problematic. Since companies and even individuals store most of their data electronically, the parties to a case can spend thousands of dollars retrieving, reviewing, and exchanging electronically-stored data, and thousands more fighting over the adequacy of these procedures.

Courts have struggled with these problems for decades, making little appreciable dent in the trend towards ever-more-costly civil litigation. Dramatic action is needed, such as re-writing the entire pretrial discovery rules for civil cases. The cardinal principle of the new rule should be: no pretrial discovery except that which is available in criminal trials, with judges retaining the power to make exceptions where warranted.

It is telling that pre-trial discovery in criminal cases -- which often involve life and liberty -- is far less expensive and time-consuming than in civil cases. Unlike civil cases, criminal cases involve no depositions or broad document request by the accused. In criminal cases, parties exchange witnesses and statements at specified times, counsel interviews the witnesses and they proceed to trial.

If courts eliminated much of the pretrial discovery in civil cases, legal fees and costs would go down, the litigants would be better served, and the vital institution of the jury trial may be rescued.

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