Benefits and Costs of Civil Justice Reform

F or more than a century, excessive costs and delays have been a chronic complaint about the American civil justice system. Although some states took steps to improve civil case processing in the past, most of those efforts had only a negligible effect, if any, and few were able to sustain those effects over time. Recently, however, a number of states have implemented civil justice reforms that couple changes in procedural rules with improved civil case automation and staffing models that offer new hope for significant improvements in civil case processing. This paper focuses on four reforms implemented in the Eleventh Judicial Circuit Court of Florida (Miami-Dade); in Strafford and Carroll counties, New Hampshire; and statewide in Utah and Texas.1 hire; and statewide in Utah and Texas.1 The working assumption for all four reforms was that streamlining the litigation process, providing more effective oversight, and reducing opportunities for satellite litigation would save litigants both time and money without compromising fairness. Assessing the impact of the reform on time is a fairly straightforward task. Timeto-disposition is a standard measure that courts have used for decades to assess performance. Many states have adopted explicit time standards for civil cases based on either the Model Time Standards for State Trial Courts2 or state-specific time standards. Most states also monitor clearance rates to identify backlogs before they become excessive.

First, Do No Harm: On Addressing the Problem of Implicit Bias in Juror Decision Making

Over the past three decades, court leaders across the country have taken aggressive steps to confront racial bias in the courts. Recent efforts include in-depth judicial education and training about how an individual’s unconscious attitudes (including culturally learned associations or generalizations that we tend to think of as stereotypes) introduce unjustified assumptions about other people and related evidence that can distort a person’s judgment and behavior. This phenomenon is now referred to as implicit bias to differentiate it from explicit or intentional bias. Judicial education programs focus on raising judicial awareness about implicit bias and introducing techniques that judges may use to help minimize the impact of implicit bias on judicial decision making. Despite high levels of interest and genuine commitment to racial fairness in the justice system, disparate treatment of racial minorities persists and pervades all stages of the criminal justice process. Jury trials are a particularly troubling component of the justice system with regard to the potential for racial bias. Courts have extremely limited opportunities to educate jurors about the pernicious effects of complex psychological phenomena like implicit bias and how these implicit forms of bias may distort jurors’ interpretation of trial evidence. Jurors are randomly selected from the local community. Other than statutory qualifications such as U.S. citizenship, age (adults 18 or older), and the ability to speak and understand English, state courts have no educational, occupational, or personal experience requirements to be eligible for jury service. Most jurors in this country serve only for the duration of the trial (typically two to three days) and then are released from service. No time is available during this short period to provide the type of in-depth education on implicit bias that judges and court staff may receive. Instead, judges and lawyers are increasingly looking to existing opportunities within the jury-selection and trial period (e.g., juror orientation, voir dire, jury instructions) in which to inform jurors about the propensity of implicit bias to affect decision making and to provide concrete strategies to minimize the impact of implicit bias on jury verdicts

Nullification at Work? A Glimpse from the National Center for State Courts Study of Hung Juries

In recent years, the criminal justice community has become increasingly concerned about the possibility that jury nullification is the underlying motivation for increasing numbers of acquittals and mistrials due to jury deadlock in felony jury trials. In this Article, the authors discuss the inherent difficulty in defining jury nullification and identifying its occurrence in actual trials. They review the evolution in public and legal opinion about the legitimacy of jury nullification and contemporary judicial responses to perceived instances of jury nullification. Finally, the authors examine the possible presence of jury nullification through empirical analysis of data collected from 372 felony jury trials in four state courts. Jurors\u27 opinions about the fairness of the law proved to be related to trial outcomes. However, case characteristics, particularly the strength and credibility of trial evidence, were the strongest predictors of verdicts. The authors conclude that jury nullification is an unlikely factor in the vast majority of felony trials. When juror attitudes about legal fairness do play a role, they most likely do so by affecting how jurors perceive and interpret trial evidence, rather than by leading jurors to intentionally disregard the governing law

The Arizona Jury Reform Permitting Civil Jury Trial Discussions: The View of Trial Participants, Judges, and Jurors

In 1995, the Arizona Supreme Court reformed the jury trial process by allowing civil jurors to discuss the evidence presented during trial prior to their formal deliberations. This Article examines the theoretical, legal, and policy issues raised by this reform and presents the early results of a field experiment that tested the impact of trial discussions. Jurors, judges, attorneys, and litigants in civil jury trials in Arizona were questioned regarding their observations, experiences, and reactions during trial as well as what they perceived to be the benefits and drawback of juror discussions. The data revealed that the majority of judges and jurors support juror discussions during trial while attorneys and litigants are divided in their views of this reform. The study also revealed that experience with the reform appears to increase support for it. Although the impact of the reform on the jury decision making process remains unclear, these early findings provide some insight into the effects of reforming the juror deliberation process

Permitting Jury Discussions During Trial: Impact of the Arizona Reform

A field experiment tested the effect of an Arizona civil jury reform that allows jurors to discuss evidence among themselves during the trial. Judges, jurors, attorneys, and litigants completed questionnaires in trials randomly assigned to either a Trial Discussions condition, in which jurors were permitted to discuss the evidence during trial, or a No Discussions condition, in which jurors were prohibited from discussing evidence during trial according to traditional admonitions. Judicial agreement with jury verdicts did not differ between conditions. Permitting jurors to discuss the evidence did affect the degree of certainty that jurors reported about their preferences at the start of jury deliberations, the level of conflict on the jury, and the likelihood of reaching unanimity

How Much Justice Hangs in the Balance? A New Look at Hung Jury Rates

Reports of apparent increases in the number of hung juries in some jurisdictions have caused concern among policy makers. A 1995 report by the California District Attorneys Association cited hung jury rates in 1994 that exceeded 15 percent in some jurisdictions (the rates varied from 3 to 23 percent across the nine counties for which data were available). In 1996, the District of Columbia Superior Court reported a higher-than-expected hung jury rate of 11 percent. Why juries hang at these rates isn\u27t clear, but some commentators have claimed that hung juries are the product of eccentric or nullifying holdout jurors and that reforms are in order. Most commentary focuses rather narrowly on the supposed failings of individual jury members. Jury deadlock is blamed on jurors\u27 inability to comprehend the evidence and the law, on their unwillingness to follow the law, and on their illegitimate refusal to reach a verdict. Policy makers have responded to the reports of a hung jury problem with proposals to implement such procedures as non-unanimous verdicts, disqualification of nullifying jurors, and a host of less radical jury modifications. Yet very little information about actual hung juries exists, and most of what does is based on 40-year-old data from the classic jury study by Kalven and Zeisel. This article discusses what is currently known about hung juries based on existing empirical research and examines some preliminary data about the contemporary incidence of hung juries in the federal courts and several state courts. The paucity of information on hung jury rates highlights the need for a rigorous and system-wide examination that extends beyond the scope of the jury itself and encompasses the institutional characteristics of each jurisdiction and how those characteristics affect the types of cases that are presented to juries

Speaking Rights : Evaluating Juror Discussions During Civil Trials

Permitting jurors to discuss evidence during civil trials may facilitate understanding and provide an outlet for their thoughts and questions, and does not appear to lead to prejudgment or prejudice

The Timing of Opinion Formation by Jurors in Civil Cases: An Empirical Examination

The question of when and how jurors form opinions about evidence presented at trial has been the focus of seemingly endless speculation. For lawyers, the question is how to capture the attention and approval of the jury at the earliest possible point in the trial. Their goal is to maximize the persuasiveness of their arguments--or at least to minimize the persuasiveness of those of the opposing side. Judges, in contrast, are more concerned about prejudgment. They regularly admonish jurors to suspend judgment until after all the evidence has been presented and after the jurors have been instructed on the law. Yet in the vast majority of jury trials, lawyers and judges have little opportunity to discern how jurors are reacting to trial evidence or whether they are abiding by judicial admonitions. Although researchers have thoroughly examined juror decision making in laboratory experiments, the point at which jurors form opinions in actual jury trials remains cloaked in mystery. Recently, however, that cloak was lifted enough to provide a glimpse at the timing of juror opinion formation. The opportunity to do so came in conjunction with an evaluation of a jury reform procedure implemented in Arizona civil trials in 1995. Data collected for the evaluation included the responses of 1,385 jurors from 172 civil trials concerning when they began to form opinions about the case, whether and when they changed their minds about those opinions, and when they made up their minds about the final outcome. This Article presents three competing models of juror decision making as they pertain to the timing of opinion formation. Using these models as an analytical guide, this Article examines the data from the Arizona study to assess convergence with these models and to identify factors that affect the timing of juror opinion formation in civil trials