#11533 - The Trial The Judge And The Jury - Civil Procedure

The Trial, the Judge, and the Jury

Theme for this whole section is erosion of role of jury. We’re the only Western country that even has juries. Europe would consider a jury trial a deprivation of the right to have a rational decision-maker.

1. The Judge

Background: Some judges are elected, some are appointed. 39 states have at least some elected judges. NY Court of Appeals judges appointed by Governor on recommendation from panel. Lower court justices elected.

Caperton v Massey Coal: arguably shows why we shouldn’t have elected judges.

SCOTUS: Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances would offer a possible temptation to the average judge to lead him not to hold the balance nice, clear and true. Significant and disproportionate nature of Blankenship’s campaign contributions made the balance not nice, clear and true.

2. Entitlement to a Jury

   1. 7^th Amendment: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law.

7^th Amendment does not restrict right to jury. It just preserves it for a minimum set of cases. Congress could still expand it by statute. Common law, as included in 7^th Amendment, referred to English distinction b/w courts of law, which had juries and enforced judgment. Equity courts were more courts of justice or fairness, to which parties could turn if no remedy under the law.

2. Rule 38

If either party wants a jury, consistent with 7^th Amendment, he can demand it as long as done within 14 days of last pleading. Can demand jury with respect to all or some issues.

Right is waived if not properly made within 14 days of final pleading. Can be withdrawn only with consent of parties.

3. Rule 39

Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.

Court can also use an advisory jury for non-common law questions, or, with parties’ consent, also use a binding jury.

Two Step Test in Curtis v Loether

Civil Rights Act provides for jury trial for various Titles, but doesn’t say anything about Title VIII housing discrimination cases.

First, look to see whether the statute provides for a jury trial. If not, ask whether this would this have been a law question or an equity question in England or in the U.S. at the time of the Constitution. If law jury, if equityno jury. Remedy sought can also be instructive here. If damagesjury; if injunctionjudge. If there’s no similar right historically that would let you determine whether its law or equity, then you look at analogous situations, and see if there’s an analogous situation in common law that would grant parties the right to jury.

If the action in question belongs in the law category, then we still have to ask whether the particular trial question must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791, or, as in Markman, can the court decide part of it.

Markman v Westview Instruments

The interpretation of terms of art in patent cases is to be resolved by judges, not juries. The action has to be tried by a jury. But does that mean that every relevant issue is an issue of fact, as to the 7^th Amendment guarantee? If the cause of action goes to the jury, can the judge break off pieces of it to handle himself? There will be two stages to the trial. First, the judge will construe the patent—what is the patent about? Judge takes this part away from the jury b/c of complexity. But jury will still decide in next stage whether the patent was breached.

Policy: think about relative interpretive skills of judges vs juries. Fairness. Do we want jury of peers, or are they irrational? Does due process guarantee you a fair trial, and does jury prevent that? From efficiency standpoint, might be better for court to consider the case as a matter of law so it becomes precedent, as opposed to jury verdicts which would not have value for deciding future cases.

3. Choosing a Jury

Rule 47

The court or the parties may examine prospective jurors. Court can excuse a juror for good cause. Each party can have 3 peremptory challenges, as governed by federal law. Where parties are joined, up to court whether to give each side only 3 or add more for additional parties.

Rule 48—jury must begin with 6-12 jurors. The verdict must be unanimous and must be returned by a jury of at least 6 members.

The Pool: The universe (e.g., voter reg. rolls) from which the panel is drawn

The Panel (venire, array): the group of potential jurors who show up in court on a given day for selection

Voir Dire: Lawyers’ opportunity to question, examine potential jurors.

Thiele v. Southern Pacific Co.

• Challenge was to the system of summoning jurors from the pool that allowed day laborers to be excused.

• Systematic exclusion of day laborers because of hardships for lost wages is not allowed—they are a crucial part of the jury pool they are a substantial part of the community, eliminating them would undermine the democratic nature of the jury system. A complete demographic microcosm would be impossible, but prospective jurors shall be selected without “systematic and intentional exclusion of any of these groups.”

Edmunson v Leesville Concrete—Extends Batson to juries in civil cases

• Edmonson moved to require Leesville to put fort a race-neutral reason for challenges. Question is whether a private litigant in a civil case can use peremptory challenges to exclude jurors on account of their race.

• Court holds that race-based exclusions violate the equal protection of the individual challenged jurors. Government is delegating its power in selecting jurors to the private-party litigant, but the process still carries a governmental character, so 14^th Amendment applies. People summoned for jury duty should not be put at risk of open and public discrimination as a condition of participation in justice system. Racial discrimination has no place in the courtroom.

Burden Shifting in Juror Discrimination Cases.

1. the party bringing the challenge must establish a prima facie case of impermissible discrimination;

2. once the moving party establishes a prima facie case, the burden shifts to the opposing party to articulate a neutral, nondiscriminatory reason for the peremptory; and

3. the court then determines whether the moving party has carried his/her ultimate burden of proving purposeful discrimination.

The prima facie case:

(a) the prospective juror is a member of a protected group;
(b) the opposing party exercised a peremptory challenge to remove the juror; and
(c) the facts and circumstances surrounding the exercise of the peremptory challenge raise an inference of

discrimination.

J.E.B. v Alabama ex rel TB

Question of whether equal protection forbids peremptory challenges on basis not only of race, but also gender. Court says yes, and that the question should, by now, be “axiomatic.” Implies that other forms of discrim are too.

O’Connor concurrence on why peremptories are valuable

• says she agrees with the decision, but wants to acknowledge the costs.

• “One need not be a sexist to share the intuition that in certain cases a person’s gender and resulting life experience will be relevant to this or her view of the case.”

• Cites empirical studies that females are more likely to vote to convict in rape cases than male jurors.

• By allowing lawyer to exclude those jurors it believes will be most partial toward the other side, means of eliminating extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury.”

• Lawyers can sometimes just have a hunch based on experience, or a juror’s body language, and we should not deny them right to act on that hunch.

• Cherish them b/c experienced lawyers will often correctly intuit which jurors are likely tob e the least sympathetic, ad the lawyer will often be unable to explain that intuition.

Scalia dissent: Peremptories allow different challenges than voir dire. It is fruitless to inquire of a male juror whether he harbors any subliminal prejudice in favor of unwed fathers that he might not be aware of.

4. Managing the Jury—Jury Instructions

Rule 51: Court must inform the parties of proposed instructions before charging the jury and must give parties opportunity to object

Rule 49: When the answers to written questions are consistent with each other but one or more is inconsistent with the general verdict, the court may approve an appropriate judgment according to the answers, notwithstanding the general verdict; direct the jury to further consider its answers and verdict; or order a new trial. When answers inconsistent with each other, court must order new trial or order jury to reconsider its answers.

Judgment as a Matter of Law and New Trial

Rule 50(a) JMOL: If a party has been fully heard on an issue and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, it may grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue

A motion for JMOL (formerly “directed verdict”) may be made at any time before the case is submitted to the jury. The motion must specify the judgment...