Now Juries Are on Trial

"Big cases" call into question their ability to do justice

The First Congress proposed the Seventh Amendment, guaranteeing the right to a jury trial "in Suits at common law, where the value in controversy shall exceed twenty dollars." But back in 1789 they could never have imagined anything like Memorex vs. IBM.

To decide whether IBM had monopolized various markets claimed in Memorex's $900 million antitrust suit, jurors needed a detailed understanding of things like "reverse engineering," "cross elasticity of supply" and "subordinated debentures." The trial lasted 96 days. The jury heard 87 witnesses and examined some 3,000 exhibits. After deliberating for 19 more days, it could not reach a unanimous verdict. Federal Judge Samuel Conti declared a mistrial. He then ruled in favor of IBM, though the jury had favored Memorex by 9 to 2. Suspecting that the jurors were baffled by the whole case, Judge Conti began asking them questions about the evidence. The answers were confused. Declaring that "the magnitude and complexity of the present lawsuit render it as a whole beyond the ability and competency of any jury to understand and decide rationally," Conti ruled that if the case had to be retried, it should be heard by a judge, without a jury.

Now on appeal, Memorex is what is known as a "big case": a multimillion-dollar lawsuit that involves mountains of evidence and may take months or years to resolve. Increasingly common, such civil cases pose a dilemma. They are generally within the broad definition given by the U.S. Supreme Court to "Suits at common law." Thus they come under the jury-trial guarantee of the Seventh Amendment. (State courts are not bound by the Seventh, but most states have similar guarantees.) Such cases add to the burdens on the already overloaded courts. More important, if the jury cannot understand the issues, the right to a jury may conflict with something more basic, the right to a fair trial.

Only about half a dozen federal judges have so far refused to allow jury trials, using as an excuse a lone footnote in a 1970 Supreme Court decision suggesting that the Seventh Amendment right to a jury may be limited by "the practical abilities and limitations" of jurors. But earlier this month U.S. Supreme court Chief Justice Warren Burger joined a growing number of bench and bar leaders who question whether modern juries can understand, much less fairly decide, complex, protracted cases.

"The jury actually selected [for a big case] is rarely a true cross section," said Burger in a speech to state chief justices. "Overwhelmingly, a great many of the people best qualified to sit on juries are those most eager to escape jury duty." Usually they succeed. With excuses ranging from "bad sleeping habits" to "poor frame of mind," every potential juror who did not want to sit through the Memorex case was excused. There were 118 in all. In many long cases, anyone who cannot get away from work for months at a time or who earns more than jury duty pays--$30 a day plus some extras--will opt out. That leaves, says Stanford Law School Professor William Baxter, juries of "the old, the jobless and the poor." At the 14-month trial of SCM vs. Xerox, a $1.5 billion antitrust suit, the jurors' average education level was tenth grade.

The parties to a civil case have the option of waiving their right to a jury and trying the case before a judge. So why do many lawyers choose to try complex cases before a jury? "Usually it's because they think they have a weak case that they couldn't win before a judge," says New York Lawyer David Boies, who defended IBM in one of its many antitrust suits.

Appointing special "blue ribbon" juries made up of people with technical or business training is one way around the problem, though it would probably face constitutional challenges because such jurors are not randomly chosen from the population. A better solution in lengthy cases might be for judges to stop excusing anyone who wants to avoid jury duty. Many lawyers and judges alike are wary of doing away with juries altogether in big cases. Judges have their own biases; at least juries offer what Los Angeles Lawyer Maxwell M. Blecher calls "a bouillabaisse of public viewpoints." These are worth hearing in the antitrust area. Says Business School Professor Donald Vinson: "The question in an antitrust case is not just whether one company should pay another money. It is whether economic power should be concentrated in a big corporation."

But there is another side to the matter. If jurors cannot grasp the complexities of a big case, it may be the fault of the lawyers. "You don't need a Ph.D. to understand these cases," says Vinson. A sociologist from the University of Southern California, Vinson has studied firsthand the ability of jurors to cope in several huge cases. His conclusion: jurors try hard, but lawyers do a poor job of explaining. Typically, lawyers spend years piling up documents until jurors get lost in the minutiae. Eventually, says Vinson, they stop listening to the gobbledygook. Instead, they watch the facial expressions of lawyers to try to guess whether the lawyers themselves believe the evidence. Adds Harvard's Arthur R. Miller: "Lawyers like to put up smokescreens. They make these cases more complicated than they are."

Yale Law School Professor Geoffrey C. Hazard Jr. argues that judges should limit the number of expert witnesses, narrow the issues before trial, give simpler instructions and break into the trial if necessary to explain confusing points in plain English. Lawyer Blecher, who has argued some 15 big cases before juries, blames judges too. "They allow lawyers to prepare cases that are three times as long as they should be. Look, if the trial was just shorter, you wouldn't have the trouble getting capable jurors to serve." The complexities of modern cases may indeed demand more of the legal system than it can deliver. The temptation is to change the system. But there is much evidence that before juries are tried, found guilty and thrown out of court, lawyers and judges should try harder to cut the big cases down to a workable size.

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