Doublethink

Juries: Why they suck and why you should never go to trial

One of the great virtues of the American justice system, we are told, is the venerable jury, a selection of our peers who decide our cases and dispense justice. Truth, we are told, is best found through the lens of our neighbors and colleagues.

Fuck that noise.

Any litigator will tell you that juries are by and large inept, lazy, inattentive, and, well, stupid. Part of this is because the majority of our fair citizens are also inept, lazy, inattentive and stupid, and part of this is because jury selection processes tend to favor “bad” juries.

To dig into this problem, it’s important to understand what juries are supposed to do. Law divides issues at trial into two broad categories: issues of law and issues of fact. An issue that involves both is usually called an issue of law applied to fact, but courts have various totally unprincipled ways to kick those issues into one category or the other. Issues of law are the province of the judge, and the judge alone has the power to decide them (technically, the judge can’t punt these to the jury). An example of an issue of law is the interpretation of a statute, or the current legal standard for a particular claim. Issues of fact are the province of the jury, and cannot be decided by the judge. An issue of fact is a factual scenario disputed by the parties and argued via evidence, e.g., whether the light was red or green.

So far so good, right? Well, not really. First, factual disputes in complex litigation are often highly technical and…complicated. Each sides brings expert witnesses, science is debated and argued, and in the end, “fact” becomes just another malleable concept to be argued over. Juries generally aren’t sophisticated enough to cut through rhetorical bullshit to weigh evidence properly, and “truth” becomes a reflection of their inherent biases rather than careful consideration of evidence.

The rot would be contained if juries just decided facts, but judges, being inherently lazy, like to kick legal issues to juries too. Juries get to decide whatever is presented to them on a verdict form. Judges and parties thus have discretion to craft verdict forms that include legal issues, cloaked in the ambiguity of the law/fact dichotomy. The usual application of this is in allowing a jury to both find facts and apply the law to those facts by instructing the jury, through often arduous readings of jury instructions that may take several hours, on the law. We thus end up with juries deciding facts based on gut feel, and then applying law that they can’t possibly understand (the lawyers usually barely understand the law as it is) to those “facts.” If a jury isn’t qualified to find facts, how possibly could a jury be qualified to understand law after being speed-read through it and apply that law in a rational way to the facts it found?

Obviously juries can’t do any of the above, so we’re left with complete unpredictability in litigation. A colleague of mine once told me that, even if you have an airtight case, you should plan for a 1/3 probability, minimum, that a jury will get every issue wrong. How insane is this? We decide the fates of individuals (criminal law) and businesses (civil law) with a 33% baseline rate of failure. The lack of rationality is astounding.

Other countries handle litigation a bit more fairly, and certainly with a more keen eye toward finding the truth rather than churning inefficiencies. We thus have some evidence that it can be done better, but obviously given how packed Washington is with lawyers invested in our horrible justice system, the chances for reform are nil.

My bottom line is that if you’re involved in litigation, unless you really have nothing to lose, never ever go to trial. If your lawyers don’t tell you how dicey juries are, they’re lying. Settlement is often the best option, and you should push your attorneys to settle cases favorably over taking them to trial unless you want to make new law on appeal, or you’re sure that an appellate panel will side with you (and you have the stomach to handle a long appeal process). This is one of the reasons why, when selecting counsel, you should ask about the lawyer’s rates of settlement and settlement outcomes rather than trial victories. Being represented by a fearsome trial lawyer can help drive settlement, but it’s usually better to have a solid negotiator with a good track record on your side.