A cornerstone of the American judicial system is slowly disappearing, on its way to ending up perhaps like one of those items in the Joni Mitchell song that “you don’t know what you’ve got ’til it’s gone.” The common American jury trial is under siege by organizations that see jury elimination as the best way to reduce court costs and the domino effect of those court costs on industries such as healthcare.
Well-meaning organizations have proposed “innovations” such as Health Courts, in which victims of medical malpractice obtain some medical benefits in exchange for their right to present their case to a jury. These organizations will argue that jury trials are expensive, ineffective, and unreliable. Their arguments are misguided.
The only equitable and accessible compensation system that has ever worked in this country comes from our constitutional right to a jury trial in civil matters. Ask anyone who has endured the workers compensation system, which years ago removed trial-by-jury from the equation, and you will hear stories of limited benefits, lengthy delays, and untold obstacles erected by company doctors. Yes, the loss of the jury trial can lead to startling and sometimes unforeseen consequences.
Granted, our court system could stand some relief from the extraordinary cost of expert witnesses and discovery abuses involving irrelevant and inadmissible material; but the
best remedy for the ailment of our court system does not – and should not — involve the elimination of the jury trial. Pre-trial procedures can and are being reformed to reduce dramatically the costs of litigation without impacting the rights of either side.
For instance, the State of Oregon has eliminated depositions of expert witnesses (with the support of both the plaintiffs” and defense bars) and cut the costs of medical malpractice and product liability cases by 50-70 percent.
The right to a jury trial in civil disputes is guaranteed by the U.S. Constitution in the Bill of Rights. When Thomas Jefferson helped write the Declaration of Independence, he stated that America was compelled to separation for numerous grievances, including England’s “depriving us in many cases of the benefits of trial by jury.”
People who have been injured – as well as those being sued — must always be entitled to have their case heard by members of the community. This is a fundamental right – an American right and a system that works well most of the time. The unusual verdicts are just that – rare and over-hyped.
While verdicts may not be correct in every instance – they are certainly correct in the overwhelming majority of cases. According to a study by the Harvard Law Review in 1997 and an independent study by Judge Royal Ferguson, senior judge of the U.S. District Court for the Northern District of Texas, almost every civil verdict in the study was within a reasonable decisional boundary. “Considerable agreement exists between judges and juries on trial verdicts in spite of errors by lawyers and judges that can occur,” Judge Ferguson wrote.
When we hear that juries are biased, irrational, separated from reality or devoid of feeling – those criticisms frequently come from people who have not heard one word of evidence or seen one exhibit at trial.
Already, the number of jury trials has decreased 60 percent over the last 25 years as costs have skyrocketed. But the idea that an injured or damaged person can be placed on a graph with a defined award is dehumanizing, shortsighted and un-American. Jurors have a long and successful history of accounting for the uniqueness of each case and ruling against people who bring weak or exaggerated claims. There is simply no substitute for a thoughtful jury drawn from our community.
Stephen Wahlberg is a partner of the law firm Hillyard, Wahlberg, Kudla & Sloane in Denver. He is the immediate past president of the American Board of Trial Advocates. Contact him at steve@hawkslaw.com.
Editor’s note: This online-only column has not been edited.
