King, Nancy J.

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DePaul Law Review Volume 48 Issue 2 Winter 1998: Symposium - The American Civil Jury: Illusion and Reality Article 12 Why Should We Care How Judges View Civil Juries? Nancy J. King Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Nancy J. King, Why Should We Care How Judges View Civil Juries?, 48 DePaul L. Rev. 419 (1998) Available at: https://via.library.depaul.edu/law-review/vol48/iss2/12 This Commentaries is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact digitalservices@depaul.edu. WHY SHOULD WE CARE HOWJUDGES VIEW CIVIL JURIES?Nancy J. King*At a bar function earlier this year, the dinner table conversationturned to juries. One judge1 spoke freely against allowing jurors tosubmit questions for witnesses to the judge during the trial. "Makesthem think they are in control," he said, "and that's dangerous.""What is the danger, exactly?" I could not help asking. "Gives themtoo much power," he explained. "They begin to demand things: pizza,breaks, certain evidence. They could begin to think that they can ap-ply whatever law they want in deliberations. It can interfere with thelitigants' interest in the orderly presentation of their cases. Judges runtrials, not jurors."I wondered how another trial judge I knew would respond to thatopinion. The jurist I had in mind was downright reverential about hisjurors. As far as he was concerned, they were the justice system'smost honored guests, to be treated like V.I.Ps. In court he repri-manded any attorney who dared to inconvenience or show disrespectfor the jurors by keeping them waiting or by failing to rise when theyentered the courtroom. This judge answered jurors' questions andbent over backwards to meet their requests, addressing jurors in tonesreserved for decorated war veterans who have risked their lives forthe greater good. I suspect that this judge never worried that suchadulation would have a negative effect on his or the parties' control ofthe litigation.A third view of jurors was represented in yet another judge's com-ments to me. He told me that jurors try hard, but just do not have theexpertise or judgment needed to decide complex factual inquiries. Hetries to make the questions they decide as simple and easy as possible."So they don't feel bad," he explained.Why is one judge threatened and wary of the jury, another gratefuland full of admiration, and another patronizing and condescending?Paula Hannaford, Michael Dann, and Thomas Munsterman offer sev-* Professor of Law, Vanderbilt University School of Law.1. I have chosen not to provide identifying information about my judicial sources.DEPAUL LAW REVIEWeral reasons to explain these varying judicial attitudes2 toward jurorsin their article How Judges View Civil Juries.3 In my brief comments, Iwould like to explore a question somewhat different, although related,to the issues addressed so well by Hannaford, Dann, and Munsterman.The question in which I am interested actually precedes theirs: Whydo we even care about judicial attitudes towards jurors? Put some-what differently: How could we use this information?Judicial attitudes toward jurors are important to understand for tworeasons. First, judicial attitudes have a direct influence on jurors inthe courtroom. I disagree with the authors' initial assertion that judi-cial views of the jury "ultimately have little effect on the actual per-formance of civil juries ' 4 though I have little more proof of myposition than they have for theirs. But consider: What a judge expectsfrom jurors cannot help but influence what she says and does during atrial, and this, in turn, must affect, at least to some degree, the juror'sown views about his role and about his fellow jurors.5 For example, ajudge's perception of jurors' ability to process information and assessits relevance will affect her rulings on evidence and her instructions tothe jury, as well as her rulings during voir dire. A judge who distrustsjurors may second-guess jurors' answers during voir dire, exclude evi-dence, or give cautionary instructions and warnings during the trial.She may be quicker to find misconduct by jurors. A judge who thinksthat her duty is to simplify the jurors' job into something they canhandle is less likely to solicit, or even answer, questions from the jury.A judge who reveres the jury may discount signs that a jury is havingreal trouble understanding what is going on, unable to consider thatthe jury may be only a "collection of lay persons who have little or noaccurate knowledge of the American justice system and who are fullycapable of fallibility."' 6 In other words, had the three judges men-tioned earlier sat on the same case tried to the same jury, I suspectthat the jurors in the three trials would come away with different setsof information about the subject of the trial, as well as different viewsabout their own role as jurors and the jury system as a whole.2. The triad of attitudes illustrated here by no means exhausts the variety of judicial viewstoward jurors.3. Paula L. Hannaford et al., How Judges View Civil Juries, 48 DEPAUL L. REV. 247 (1999).4. Paula L. Hannaford et al., How Judges View Civil Juries (draft Mar. 1998, at 12) (on filewith the DePaul Law Review).5. Peter D. Blanck, What Empirical Research Tells Us: Studying Judges' and Juries' Behavior,40 AM. U. L. REV. 775 (1991). "The courts, legal scholars, practitioners, and social scientistsrecognize that trial judges' verbal and nonverbal behavior may have important effects on trialprocesses and outcomes . i..." Id. at 777. Blanck's article also contains a collection of sourcesstudying the effects of judicial behavior on trials. Id.6. Hannaford et al., supra note 3, at 256.[Vol. 48:419CIVIL JURIESConceivably, it could be possible to identify which judicial attitudesprompt the most efficient, accurate, and satisfying decision making byjurors, or, at the least, which judicial attitudes about jurors seem toconsistently correlate with certain negative aspects of the deliberativeprocess.7 Thus identified, this information could become an elementof judicial training and evaluation programs. Undoubtedly, some willguffaw at the prospect of changing the minds of judges about any-thing as fundamental as the treatment of jurors. For skeptics, theremay be another use for this information that does not involve attitudeadjustment. Awareness of correlations between judicial attitude andjury performance could be used to help interpret information aboutjury behavior in courtrooms or districts in which a certain judicial atti-tude is prevalent.Attention to judicial attitudes about juries may have a second, moredirect value to those considering jury reforms. Just as judicial viewsabout the capabilities and shortcomings of juries control to some ex-tent the administration of trial procedures, they also control changesin those procedures as well. 8 Jury reform truly starts and ends withjudges, as it is judges who must eventually administer any jury proce-dure. For good or ill, judges constitute jury reform's major constitu-ency. Through their writings and lobbying, or simply by failing toimplement changes, judges can control the jury reform agenda. If amajority of judges in a particular jurisdiction does not view a particu-lar jury procedure or condition as a problem, those who wish tochange it will have an uphill battle. This suggests that informationregarding judicial attitudes about jurors may prove to be a better di-agnostic tool than public opinion surveys when it comes to jury reformbecause information about judicial attitudes can help lawmakers andothers decide when reform efforts should be directed elsewhere orpostponed.9 For example, of the over 550 trial judges who respondedto a recent survey concerning juror misconduct in cases tried over thepast three years, 27% reported that not a single juror had failed to tell7. Of course, it would be much more difficult to sort out these effects in real trials than inmock trial studies. Cf. Peter David Blanck et al., The Measure of the Judge: An Empirically-Based Framework for Exploring Trial Judges' Behavior, 75 IowA L. REV. 653 (1990) (describingan empirically-based framework for exploring trial judges' behavior in actual trials and reportingthe results).8. See Hannaford et al., supra note 3, at 257 (mentioning that judicial views are affected byjury reform efforts). I think the link is much stronger in the other direction, a point they eventu-ally make later in their article. Id. at 259-60.9. This is not to suggest that judicial opinion will never coincide with public opinion on thesematters, just that judicial opinion has greater influence.19981DEPAUL LAW REVIEWthe truth, while 2% reported that jurors were untruthful in most oreven all trials.10The authors' analysis of judicial attitudes toward juries is a usefultool for advocates of jury reform for another reason. Sensitivity to thefeatures that shape judicial attitudes about jurors may facilitate moreproductive discussion and negotiations about various reform propos-als. Often, a judge's self interest in opposing or endorsing change mayvery well coincide with the public's interest. For example, both maybe interested in minimizing the cost of litigation. But sometimes theindividual incentives of judges will depart from the preferences of thepublic or the legislature. Using the same reasoning that the authorsemployed to trace the source of judicial attitudes about juries, one canassume, for instance, that a judge's capacity to recognize a "problem"with her juries is influenced by self interest, at least subconsciously.So long as the public and others link jury behavior to judicial action(as I have above, and the public did after the trial of O.J. Simpson),trial judges will continue to be blamed for jury shortcomings. Judgesmay very well react to the assessment that "juries are failing," as par-ents react to claims that their children have gone awry-defensively.To avoid unpleasant self-doubt and guilt ("It's our fault-where didwe go wrong?"), whether irrational or not, it may be easier for judgesto deny that any problem exists.' 2 Similarly, even judges who mayagree that a particular change in jury procedure is needed may resist itfor reasons that vary in their legitimacy, including laziness, reluctanceto take on new responsibly, or the desire to minimize accountability.This possibility suggests that the most productive discussions aboutjury reform will take place when these competing incentives are rec-ognized and addressed. By collecting and exposing these influences,the authors have opened the dialogue. In the years to come, weshould remind ourselves of their insights.10. Nancy J. King, Juror Delinquency in Criminal Trials in America, 1796-1996, 94 MICH. L.REv. 2673, 2737 (1996).11. See, e.g., Murray Richtel, The Simpson Trial: A Timid Judge and a Lawless Verdict, 67 U.COLO. L. REv. 977 (1996).I am loathe to criticize jury verdicts because I think that if the jury goes wrong, it isusually the judge who bears a measure of responsibility .... My distance from theSimpson case, however, gives me the luxury of saying that .... Judge Ito's handling ofthe case greatly contributed to a courtroom atmosphere that was not conducive to jus-tice, and his conduct in part explains the jury verdict.Id. at 979-80.12. See Hannaford et al., supra note 3, at 256 (stating that judges may view the jury trial itselfas proof of failed settlement or case management skills). The tendency for judges, like the restof us, to cast our behavior in the best light possible may lead judges to subconsciously underre-port jury misconduct or fail to recognize it, for example.[Vol. 48:419

Why Should We Care How Judges View Civil Juries?

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Why Should We Care How Judges View Civil Juries?

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