Archive for April 26, 2023

The Jury as Part of Procedural Fairness   Leave a comment

We all know that very few cases go to trial – nationally, the percentage of trials is about 1% across civil and criminal cases. But most lawyers and judges simply accept that as a given nowadays because that is the norm in the profession in which they grew up.

            I want to challenge readers to think about working to restore the jury trial as an integral part of advancing procedural fairness (there are many other reasons to promote jury trials, but they are beyond the scope of this post).  Alexis de Tocqueville described the jury as “free school” two centuries ago. When everyday citizens, and their friends and neighbors, serve on juries, they generally walk away from the experience with renewed civic engagement and a better understanding of the court system. Isn’t that something we should encourage? The experiences of jurors can reflect well on the judiciary and help promote confidence in the institution.

            And think about how many participants in our modern litigation system (civil parties, criminal defendants, and even victims) desperately want their “day in court.” They want to see how a jury of their peers will evaluate their claims. Unfortunately, most of them will never get that chance.

            Our contemporary litigation system has evolved to promote settlements or pleas and steer cases away from jury trials. And the system generally works well from a case-processing vantage point. But when much of the work is done in the shadows and away from public eye, how does this reflect on the judiciary?

            The jury exists to provide a check on other institutions (including judges!) and to inject a dose of lay wisdom into the dispute resolution process. We lose both of those critical benefits when juries are sidelined and marginalized.

            Think about even modest steps that you can take—as a judge—to help bring the jury back into the picture. Empirical data suggests that there is a gap between judicial perception (that all parties want to settle or plea) and what lawyers actually believe. What can you do to facilitate trials in cases where parties appear to want or need the jury trial? Even small steps like conveying that you’ll make it work for your schedule can send the message that jury trials are actually welcome and valued.

–Pierre Bergeron, Ohio First District Court of Appeals

Posted April 26, 2023 by judgepbergeron in Uncategorized