Although the Seventh Amendment preserves the right to civil trial in cases arising at common law, some federal courts have held that a case may be too complex for a lay jury to understand, and that submitting such a case to a jury is a denial of due process. Others have held that no litigant otherwise entitled to a jury trial should be denied it because of the difficulty of the case, that jurors are capable of understanding any case, and that trial by jury protects liberty and permits the decision to incorporate community values. The Supreme Court has not yet decided this issue. Its decisions might take into account whether jurors understand the issues in complex cases, whether jury trials cause delay and increased expense, whether the jurors who can serve and who are chosen in lengthy trials are representative, and whether the verdict in such cases is likely to be based on rules of law or inappropriate factors. The empirical research does not yield clear answers to these questions. However, laywers elect jury trials for tactical rather than doctrinal reasons, and jury cases are tried differently from others. All trials, jury or bench, suffer from poor management, and all can be improved by good administration.
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References
1.
1. 458 F. Supp. 423 (N.D. Cal. 1978), aff'd per curiam on other grounds, 636 F.2d 1188 (9th Cir. 1980). This case is called the “Memorex case,” because Memorex Corporation was the plaintiff in one of the consolidated cases. District Judge Samuel Conti granted IBM's motion that he direct the jury to reach a verdict in its favor. The verdict was affirmed. Memorex Corp. v. IBM, 636 F.2d 1188 (9th Cir. 1980) (per curiam), relying on California Computer Prods., Inc. v. IBM, 613 F.2d 727 (9th Cir. 1979). In affirming, the U.S. Court of Appeals said that its disposition made it unnecessary to decide whether the trial judge erred in striking Memorex's demand for a jury trial were there a new trial.
2.
2. 458 F. Supp. at 444.
3.
3. Ibid.
4.
4. Ibid., pp. 447-48.
5.
5. U.S. Const. art. III, § 2.
6.
6. The Federalist (New York: New American Library, 1961), no. 83, p. 495 (emphasis in original).
7.
7. Ibid., p. 496.
8.
8. Ibid., p. 499.
9.
9. Ibid., p. 501.
10.
10. Ibid., p. 499.
11.
11. Ibid., p. 504.
12.
12. Ibid., p. 506.
13.
13. Ibid., p. 505.
14.
14. Ibid., p. 509.
15.
15. The debate over the use and limits of the jury is revealed not only in The Federalist but in later arguments. See, for example, Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971), pp. 121-122, 190-191, 197-198, 201-203.
16.
16. The entire account of the origin of equity jurisdiction is taken from David M. Walker, The Oxford Companion to Law (New York: Oxford University Press, 1980), s.v. “equity.”
17.
17. The Fourteenth Amendment to the Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Supreme Court, in a series of decisions, has held that some provisions in the Bill of Rights, such as the protections of freedom of speech or the protection against self-incrimination, are essential to due process and has thus held that these provisions are binding on the states even though the language of the Bill of Rights specifically restricts only the federal government.
18.
18. Alexis de Tocqueville, Democracy in America, ed. Phillips Bradley (New York: Knopf, 1955), vol. I, p. 290.
19.
19. The data each year are collected in the Annual Report of the Director of the Administrative Office of the U.S. Courts. See, for example, 1980 Report, p. 298, and table 52, p. 299. Although the debate is currently focused on the jury's use in complex civil cases, there is a long tradition of argument over its utility in all civil cases; see, for example, Schaefer, “Is the Adversary System Working in Optimal Fashin?” in The Pound Conference: Perspectives on Justice in the Future, eds. A. Leo Levin and Russell R. Wheeler (St. Paul, MN: West, 1979).
20.
20. Dimick v. Schiedt, 293 U.S. 474, 476, 55 S.Ct. 296, 297, (1935); Charles Alan Wright, Handbook of the law of Federal Courts, 3d ed. (St. Paul, MN: West, 1976), p. 450 (hereafter cited as Federal Courts).
21.
21. Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 378 (1970); see Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948 (1959). These cases are discussed in Wright, Federal Courts, pp. 451-455.
22.
22. United States v. Louisiana, 339 U.S. 669, 706, 70 S.Ct. 914 (1950); Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 15 (1913); Wright, Federal Courts, p. 450.
23.
23. Curtis v. Loether, 415 U.S. 189, 194-95, 94 S.Ct. 1005, 1008-09 (1974); discussing cases. If a case involves several claims, the right to a jury trial is determined by the nature of each claim. The claims may be tried simultaneously, some to be decided by the judge and others by the jury. Charles Alan Wright and Arthur A. Miller, Federal Practice and Procedure, 23 vols. (St. Paul, MN: West, 1971), 9:34-35 (hereafter cited as Federal Practice and Procedure).
24.
24. Ross v. Bernhard, 396 U.S. 531, 538 n. 10, 90 S.Ct. 733, 738 n. 10 (1970).
25.
25. Wright, Federal Courts, p. 454.
26.
quoted in Wright, Federal Courts, p. 454.
27.
27. In re Japanese Elec. Prods. Antitrust Litigation, 631 F.2d 1069 (3d Cir. 1980).
28.
28. ILC Peripherals Leasing Corp. v. IBM, 458 F.Supp. 423, 444-49 (N.D. Cal. 1978) (the “Memorex case”) aff'd per curiam on other grounds, 636 F.2d 1188 (9th Cir. 1980); Bernstein v. Universal Pictures, Inc., 79 F.R.D. 59, 67-70 (S.D.N.Y. 1978); In re Boise Cascade Sec. Litigation, 420 F.Supp. 99 (W.D. Wash. 1976).
29.
29. In re Japanese Elec. Prods Antitrust Litigation, 631 F.2d 1069, 1088 (3d Cir. 1980). Contra, In re (U.S. Fin. Sec. Litigation, 609 F.2d. 411 (9th Cir. 1979), rev'g 75 F.R.D. 702 (S.D. Cal. 1977), in which 18 cases involving allegations of “federal and state securities laws violations, common law fraud and negligence” were consolidated for trial. 609 F.2d at 413. Some had been settled or were inactive, but six active cases remained for trial. Ibid., p. 416. The trial court estimated that 100,000 pages of documentary evidence would be presented, a stack of paper as high as a three-story building. 75 F.R.D. at 707. It was estimated that the trial would require two years. Ibid., p. 713, with much of it devoted to technical testimony about complex accounting methods and theories. Ibid., p. 707. The jury would then be required to apply the evidence under the correct theory of each of the various claims against each of dozens of defendants and assess the amount of damages, if any, due from each defendant to each plaintiff, and the liability of various defendants to each other. Ibid. The appellate court, however, reversed the trial court's decision to strike the demands for a jury trial, holding that “there is no complexity exception to the Seventh Amendment right to a jury trial in civil cases,” and stating: “We do not believe any case is so overwhelmingly complex that it is beyond the abilities of a jury.” 609 F.2d at 432. The opinion cites two district court cases in which the same conclusion was reached. Ibid., pp. 418-19; one of these was the opinion of Judge Edward Becker in Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 478 F.Supp. 889 (E.D. Pa. 1979), which the Third Circuit reversed in In re Japanese Electric Products Litigation. At least one district court has rejected the Third Circuit's holding and followed the Ninth Circuit's decision in In re U.S. Financial Securities Litigation. Kian v. Mirro Aluminum Co., 88 F.R.D. 351, 355 (E.D. Mich. 1980); see Rosen v. Dick, 639 F.2d 82, 86 (2d Cir. 1980), declining to endorse what the district court called “the `developing theory' about the limits of the constitutional jury trial right”.
30.
30. Professor Martin H. Redish in “Seventh Amendment Right to Jury Trial,” pp. 507-8, summarizes the historical arguments for and against the use of juries.
31.
31. In the 1950s, as part of the study that produced their seminal work, The American Jury, Harry Kalven and Hans Zeisel sought to obtain recordings of actual jury deliberations, partly to study the process itself and partly “to learn whether post-trial interviews with jurors permit reconstruction of the events of the jury room.” The study was begun with the consent of the trial judge and counsel, but without knowledge of the jurors, in five civil cases in the federal district court in Wichita, Kansas. When this study became public, “there followed public censure by the Attorney General of the United States, a special hearing before the Sub-Committee on Internal Security of the Senate Judiciary Committee, the enactment of statuties in some thirty-odd jurisdictions prohibiting jury-tapping, and... widespread editorial and news coverage by the national press.”Harry Kalven, Jr. and Hans Zeisel, The American Jury (Boston: Little, Brown, 1966), pp. vi-vii.
32.
32. Ibid., pp. 55-63.
33.
33. Ibid., pp. 63-65.
34.
34. Ibid., p. 157.
35.
35. This account is taken from George Humphrey, The Story of Man's Mind (Norwood, PA: Norwood Edns., 1978; reprint of 1923 edition).
36.
36. Charles W. Joiner, “From the Bench,” in The Jury System in America: A Critical Overview, ed. Rita J. Simon (Beverly Hills, CA: Sage Publications, 1975), pp. 143, 146 (hereafter cited as “From the Bench”).
37.
Note, “With Love in Their Hearts but Reform on Their Minds: How Trial Judges View the Civil Jury,”Columbia Journal of Law and Social Problems, 4:178, 183 (Jul. 1968) (1967 study). In all, 27 percent said, “Don't touch it, it's fine,” and 61 percent said, “Needs minor reform.” Only 12 percent said, “Needs basic curtailment,” Ibid.
38.
38. 28 U.S.C. §§ 1861-1869.
39.
39. Gordon Bermantet al., Protracted Civil Trials: Views from the Bench and the Bar (Washington, DC: Federal Judicial Center, 1981), p. ix (hereafter cited as Protracted Civil Trials). The other team members were Joe S. Cecil, Alan J. Chaset, E. Allan Lind, and Patricia A. Lombard. They were assisted also by Rama Bar-Adon and Joseph Matta.
40.
40. Small Group Decision Making and Complex Information Tasks (Washington, DC: Federal Judicial Center, 1981), p. 3.
41.
41. These data are from a new and as yet unpublished analysis by Dr. Bermant and Miss Lombard.
42.
42. Ibid.
43.
See ibid., pp. 71-81.
44.
44. Bermant and Lombard.
45.
45. Bermant, Protracted Civil Trials, p. viii.
46.
Joiner , “From the Bench,” p. 155.
47.
47. Bermant and Lombard.
48.
48. Bermant, Protracted Civil Trials, p. 19.
49.
Maxwell M. Blecher and Howard F. Daniels, “In Defense of Juries in Complex Antitrust Litigation,”Review of Litigation, 1:47, 88 (Winter 1980).
50.
50. For example, Bermant, Protracted Civil Trials, pp. 56-57.
51.
51. Ibid., p. 57.
52.
52. Fed. R. Civ. P. 38(d).
53.
53. Although there is no right to a jury trial in some civil cases, for example, admiralty proceedings in which the parties are resident in the same state, the number of cases in which there is no right to a jury is relatively small.
54.
54. Bermant, Protracted Civil Trials, p. viii.
55.
55. Wayne Brazil, “Civil Discovery: Lawyers' Views of its Effectiveness, its Principal Problems and Abuses,”American Bar Foundation Research Journal, 1980: 787 (Fall 1980).
56.
56. Marvin E. Frankel, “The Search for Truth: An Umpireal View,”University of Pennsylvania Law Review, 123:1031 (May 1975).
57.
See also William v. Juneburg and Mark A. Nordenberg, “Specially Qualified Juries and Expert Nonjury Tribunals: Alternatives for Coping with the Complexities of Modern Civil Litigation,” Virginia Law Review, 887 (Jun. 1981).
58.
58. Counsel can make the same careful preparation as they would for a jury. Voir dire, opening statements, closing statements, and the extra recesses to attend to jury needs can be eliminated. When only the judge must read depositions, there is no need to read them aloud. The need for explaining procedures to a jury is eliminated. Counsel can prepare briefs on the merits in advance as they would closing argument to a jury. There is no real need to await transcripts. The judge can render an opinion without lengthy delay.
