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Professional Juries

According to Legal Profession Blog:

The New Jersey Appellate Division reversed an $876,000 plaintiff’s verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. . . . [T]he jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article “disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges.”

The court’s opinion is here. The article by the law professor — Robert Martin of Seton Hall Law School (who is also a New Jersey state senator) is in the New Jersey Law Journal and requires a subscription to access it.

What should one conclude from this case?

The reaction many would have is that it was unwise to put a law professor on the jury. Shouldn’t one expect when a law professor or lawyer is on the jury that he or she will have significant influence? If you put a bunch of people in a airplane cockpit, none of whom know how to fly a plane, along with a pilot, it doesn’t take Einstein to figure out that the people might want to consult with the pilot! As my colleague Jonathan Turley writes in his blog: “Martin’s article is a perfect example why some of us oppose lawyers sitting as jurors. It is a terrible practice that encourages undue influence by a single juror in deliberations.”

But there’s another lesson to be learned from this case. We should have professional juries. I’m increasingly of the opinion that our jury system is a joke. Consider some of the very thoughtful points Professor Martin wrote in his article about his experiences:

I became acutely aware that jurors are not generally permitted to ask questions during trial (except through written request). . . .

Additionally, jurors are usually prohibited from taking notes. . . .

In preparation of our deliberation, the judge gave us detailed instructions, which in this case lasted about an hour. These instructions amounted to a mini-course in tort law, similar in content to what some law students have trouble absorbing over the course of a full semester. Although the judge read from carefully prepared notes, we again were prevented from taking our own notes (but reminded that we must closely follow all of the instructions).

The process which Martin describes (and which indeed is quite common) is ridiculous is so many ways. First, it is ridiculous that juries are basically taught the law after hearing the facts of the case. If one is applying a rule, shouldn’t one know about the rule first in order to determine which facts are relevant and which are not?

Second, it takes law students three years to learn the law — or at least a semester to learn a specific subject like torts — and yet juries are expected to understand the law after just one brief lecture from the judge. Who are we kidding when we think that the jury is really applying the law? Juries probably have little to no idea about what the law is.

Third, many judges disallow note-taking. But in lengthy trials — or even in trials lasting a day or two — how are jurors supposed to remember the details? And in the case Martin describes, the jurors weren’t allowed to take notes about the law when the judge instructed it. I’d like to try an experiment — give a bunch of judges an hour lecture about a specific set of legal rules, not let them take notes, and then see how much they remember. This is difficult even for those with legal training — imagine how hard it must be for those without such training!

Many law professors rail against student-run law reviews, where students select the articles. “How can we let a bunch of amateurs decide which scholarly articles have merit?” so many professors wonder. Professors complain more about this than our legal system, where we have a bunch of amateurs decide cases and apply the law. As Justice Oliver Wendell Holmes once wrote: “[I]f a question of law is pretty clear we [judges] can decide it, as it is our duty to do, if it is difficult it can be decided better by twelve men taken at random from the street.”

At least in civil cases — and perhaps in criminal ones too (this gives me more pause, for the jury’s ability to check the power of the state in criminal cases has significant value in my opinion) — I believe we should have professional juries, with basic knowledge of the law (and perhaps even a full three-year legal education).

In addition to basic knowledge of the law, professional juries should also be trained in the latest empirical evidence that would help them best assess the factual evidence in a case. Jurors should be trained in the studies about the reliability of eyewitness testimony (which isn’t very reliable) so they can weigh it appropriately vis-a-vis other evidence. They should be trained about which cues and aspects of a witness’s demeanor are likely to indicate whether he or she is telling the truth, as currently jurors use their own intuitions in this regard, which may or may not be correct. And so on.

Jurors should be paid a real wage for their services. Currently, we slough off the costs of our legal system on people randomly selected for jury duty.

We’re in the 21st Century, and our legal system uses a method of adjudication that was invented in the Middle Ages. It’s time for a more professional way of resolving legal disputes, one where the decisionmakers are not a bunch of often-unwilling people plucked from the street, forced to upend their lives to resolve the disputes of others, and without the expertise to evaluate the facts and apply the law.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

If you are interested in privacy and data security issues, there are many great ways Professor Solove can help you stay informed:
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