Drowned in the Jury Pool


The other day I reported for jury duty. In California, you report for one day, and if you aren’t lucky enough to get on a jury, you’re out for at least the next year. I’ve gone through this four or five times now, and only once did I land on a jury. That jury was hung, partly because the august legal minds empaneled a woman who claimed that her profession was teaching the principles of jury selection to students in a junior college. She proved to be, as almost anyone would have anticipated, an enormous pain in the ass.

This year, I waited in the “jury lounge” for several hours, not even pretending to watch a propaganda film about how wonderful it is to serve on a jury. I puzzled over the wording of my next book, chatted with a couple of people who, like me, wished devoutly not to get on a jury, celebrated the fact that it was 11:45 and no calls for jurors had been made — and then it happened. My name was announced as one of the 40 people who had to assemble in Superior Court, Section Such and Such, to be examined by the judge and attorneys to determine whether we were fit to decide whether someone should go to jail for burglary and such and such and so and so, and possession of methamphetamine.

The way they do this is to get all 40 victims into the courtroom, and then particularly examine the first 21, to see whether some of them should be replaced by some of the other 19. Why 21, I don’t know. I was randomly assigned a position as Prospective Juror No. 9.

Once we jurors had been properly infantilized, we were taken into the courtroom, seated in our places, and asked a series of questions by the judge.

My cohort’s progress into the jury room was impeded by a court official who spent 25 minutes checking off the list of 40 randomly generated names. He made jokes about his age, and his eyeglasses, and his difficulty reading the list, and our names, and his mispronunciation of our names, as if it mattered how he pronounced anything. He may have been wasting time because the judge wasn’t ready to invite us in. So if the dentist is late, does he have one of his assistants come out to the waiting room and start drilling your teeth?

Once we jurors had been properly infantilized, we were taken into the courtroom, seated in our places, and asked a series of questions by the judge. She turned out to be very sensible. She explained what she was doing with great succinctness, asked her questions clearly, and found ways to limit our answers to what was relevant. She was a welcome relief from my last judge, who when confronted by an elderly man who announced with pride that he had been a member of more than 30 juries and had always enjoyed himself, invited the aged idler to entertain us with stories from his service to American justice. The current judge wasn’t like that. After her round of examination, she gave the prosecuting attorney and the defense attorney just 15 minutes each to ask their own questions. I quickly grew to like her.

But what I’ll always remember is the responses of my fellow prospective jurors.

The man who answered the judge’s question, “Would you believe that the defendant is guilty just because he’s sitting at the defendant’s table?” by saying, “Yes. I mean, why else would he be the defendant?” Body language suggested that he wasn’t just trying to get off the jury. He was being honest.

The woman who, thoughtfully and repeatedly, said that she could not serve on a jury because her religious beliefs did not allow her to judge her fellow men. When I spoke with her at the end of the day, she proved to be a Christadelphian, a member of a sect that I had studied but of which I had never met a single member. This was a big deal for me. She was a nice person and probably the most intelligent person I met all day.

She tried to argue me into it. Surely I could vote on a question of fact?

The woman who, when asked whether she or any member of her family had been a victim of crime, revealed that her mother’s car had once been stolen, “and she never got it back!” She started crying hysterically and was told to go home.

The woman who, almost as hysterically, answered several questions by saying that she wouldn’t have a bias about someone accused of drug possession, but if she thought he committed a crime because he was “addicted,” she could never forgive him, “never! never!

The woman who said she had friends who were going to law school, and they told her that “there were things going on behind the scenes,” evidently “things” in the legal system, and therefore . . . something. The judge tried to get her to say what the “things” were, tried to joke with her about how law students sometimes make remarks that don’t mean very much, tried to get her to put some definition to anything she said. But her efforts were futile. She gave up.

The man who answered every question about things that might affect his judgment with some story about his “partner,” his “current partner,” or his “partner in the 1980s,” and who was concerned that his “partner in the 1980s” had a relative who was a “correctional officer.” “Do you know that person?” the judge asked. “No . . . I never met him.”

The woman who answered the question about whether police officers ever lie with an adamant declaration that no, they never do. Never? the judge asked. No, never. The judge’s eyes widened; she was obviously repressing the desire to say something like “What kind of an idiot are you?” Members of the jury pool had less luck repressing their laughter. The judge kept questioning the woman, trying to get her to say whether there was any possibility that any police officer might ever say anything except the truth. Finally the woman conceded that if you got together enough thousands and millions of police officers, one of them might possibly, on some occasion, probably in private, deviate very slightly and unintentionally from the exact truth.

The several people who plainly did not speak English with any facility but who were emphatic in correcting the judge about her pronunciation of their names.

The several people who, refreshingly, laughed off all mispronunciations.

The man who, very, very seriously, reviewed the long and irrelevant history of his employment.

The woman who, very enthusiastically, responded to every question with an account of the social work that she and her husband perform.

The many people who recounted friends’ and relatives’ run-ins with the law, almost always incidents about driving while under the influence (not injuring anyone, mind you) or using recreational drugs, then shrugged and said, “No, the punishment was fair; he brought it on himself.”

If you’ve been adding up this list, you can see that there were a lot of people in that first cut of 21 who may not have belonged on a jury.

What about me? I didn’t belong either. At the appropriate moment, I advised the judge that I thought it was immoral to convict anyone on a drug charge. She read a statement about juries not deciding the law for themselves, and I said that yes, I understood, but in the case of victimless crimes I was in favor of what the statement was trying to exclude, which was jury nullification. She smiled and said, “Yes, that’s what we’re talking about.”

The judge’s eyes widened; she was obviously repressing the desire to say something like “What kind of an idiot are you?”

The defense attorney of course wanted me to be empaneled, so she tried to argue me into it. Surely I could vote on a question of fact? Surely I could determine whether someone possessed methamphetamine? Surely that wouldn’t be convicting anyone? Surely only a judge can sentence anyone? I told her I could see where that train was going, and I wouldn’t get on it. The prosecuting attorney smiled and joked with me, suggesting that I was arrogant enough to think I knew better than everyone else. Maybe he was right, but I was wondering why he bothered. Maybe he was trying to discourage anyone else from acting like me in the jury room. By this point, ironically, I was getting interested in the process and mildly regretting that I wouldn’t get to serve.

After a couple hours of jury examination, punctuated by a short break that turned into a longer break, the judge called the attorneys into her chambers. A few minutes later they came back, and she announced that five people were excused: me, the young Mexican American who sat next to me, the Christadelphian lady, and two others whom I couldn’t connect with the answers they’d given. The Mexican American was a working class kid who had started responding to questions about drug convictions with answers like, “I don’t know. . . I could follow the law. But with recreational drugs . . . I dunno . . . It doesn’t seem right. . . . Well, yeah, I guess so.” After listening to the back and forth about me, he reached a more definite position. He said he would not vote to convict anyone for drug possession. I didn’t talk to him during the breaks, or at any other time; but maybe I was responsible for his values clarification.

And so it ended. I walked out of the courthouse, chatting with the Christadelphian lady, then proceeded to the eight-dollar-a-day parking lot, having experienced the American jury system in what may be nearly its finest hour.

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Tort Reform vs. “Loser Pays”


The concept of reforming the American legal system to adopt the “loser pays” system used in most foreign countries, by which the loser pays the winner’s attorney’s fees, is popular among libertarians. “Loser pays” is proposed as a means of deterring frivolous litigation and solving the problem of excessive lawsuits. When Texas recently adopted the system, it was championed as a victory for small business. I have seen John Stossel advocate it, and in Liberty I have seen Gary Jason endorse it in a comment on one of my essays. “Loser pays” is a policy that might seem reasonable to a non-lawyer layperson. To a lawyer like me, unfortunately, it looks like a policy with unintended and unfavorable consequences — and a policy that has little chance of accomplishing its purpose.

The idea that it will deter frivolous litigation hinges on the idea that the frivolous litigant will lose. Yet if frivolous litigants actually stand a good chance of winning, then “loser pays” deters nothing except poor people, who would find it riskier to access the justice system. In torts lawsuits, the laws are such that bad plaintiffs with bad suits often have a good chance of winning. For instance, Liebeck v.McDonald’s was a lawsuit in which a woman sued McDonald’s because she spilled hot coffee and burned herself, for which McDonald’s was held liable at trial for millions of dollars (mostly punitive damages) and ultimately settled the appeal. This is the quintessential bad lawsuit, and it was held up as a poster child for tort reform. Yet the plaintiff won at trial, on the argument that the coffee was excessively hot and the cup’s warning label was too small.

This lawsuit could have been stopped by reforming the law, that is, by creating a bar to punitive damages whenever there is a warning label. Because the case settled, it would have been unaffected by “loser pays.” Under “loser pays” the risk of having to pay McDonald’s’ legal defense fees if the plaintiff lost might have factored into her calculation of whether or not to sue. But she won the case at trial, and if cases like this happen, then who really expects plaintiffs with bad cases to be excessively afraid of losing? As I will explain below, you don't win a lawsuit because of the rationality of your claim but because of the emotions of the jury. So if a tort plaintiff can reach a jury, the jury trial system will be favorable to stupid lawsuits. The best solution is to reform the tort laws so that plaintiffs with ridiculous cases have no legal way to reach a jury.

You don't win a lawsuit because of the rationality of your claim but because of the emotions of the jury.

Meanwhile, “loser pays” is likely to scare poor people with valid claims away from court, by inspiring the fear not only of losing but also of paying the huge legal fees of a wealthier opponent’s high-powered law firm. The landmark civil rights litigation that helped to end Southern segregation might never have been filed in a “loser pays” system.

As for frivolous suits — There are already legal ethics rules and civil procedural rules that forbid and punish lawyers for bringing “frivolous”, “vexatious”, “abusive” suits, and there are provisions that enable judges quickly to dismiss baseless or groundless claims. “Loser pays” will add little to the tools that are already there to deal with the frivolous. In fact, the only way to prevent bad litigation is to eliminate the bad laws that form the legal basis of bad lawsuits.

Let me clear: I am an advocate of tort reform, just not of “loser pays” in particular. There are many tort reform policies to choose from that would reduce unnecessary or harmful litigation without toxic side effects. We could, for instance:

1. Reduce the percentage of the tort plaintiff’s contingent fees that are considered “reasonable.” Legal ethics rules ban lawyers from charging “unreasonable” fees, but a whopping 30% is considered reasonable, and 30% is the typical rate. I think a cap of 5% as “reasonable” would cut the amount of frivolous litigation in half. In this way, torts plaintiff lawyers would enter their practice with some other goal than becoming multimillionaires by exploiting the tragedies of their poor clients.

2. Eliminate class actions. The whole concept of class actions has always bothered me. To say that someone else has the right to litigate my claim without my consent or involvement, just because our claims are identical, is absurd, even if there are requirements of judicial consent and competent representation and the ability to opt out. Judicial efficiency, which is the valid motive of class actions, is not an excuse to let someone else litigate my case. Because class actions have millions of plaintiffs but only one law firm, the lawyers often make millions while the plaintiffs each get a few cents.

Now, there is already a rule in legal ethics codes that bans lawyers from representing multiple clients who have conflicts of interest with one another — something I believe most class action clients have, because each client’s claim is slightly different and might benefit from the case’s being tried differently. The conflict of interest rules are considered to be among the most important, yet class actions have a loophole. So instead of effecting a statutory ban, I propose simply to close the loophole and force class action lawyers to vet every member of the class for conflicts of interest. Any conflict would remove that class member. This would sharply reduce the volume of class action litigation.

3. Change the products liability tort standard from strict liability to negligence. Products liability cases are typically tried under a theory of “strict liability,” which means that fault (i.e. blame) need not be proven. Strict liability is an affront to logic, an abomination. While some see the purpose of tort law as deterrence, I see it as compensatory justice, which means that damages are supposed to restore a victim to the condition he or she would be in, had the defendant not made a bad decision. I view tort law and contract law as twin aspects of free will and personal responsibility, as recognized by law: contract law means that your choices will bind and control you, whereas tort law means that someone else’s choices will not be allowed to ruin you. If defendants have not made bad choices, there is no reason to make them pay.

If a tort plaintiff can reach a jury, the jury trial system will be favorable to stupid lawsuits.

Although a layperson might think of negligence as something that happened to cause an unintended accident, the better understanding is that it consists of the choice to be careless and risk-prone. The strict liability standard has been justified on the grounds that product defects are technologically complicated and it would be too difficult to prove negligence, but this is no excuse for bad law. We should force plaintiffs to prove negligence. Then everyone will benefit from cheaper prices, because manufacturers’ litigation costs will decrease.

4. Reform the standard of negligence for medical malpractice, so as to create a safe harbor. Medical fees skyrocket when doctors are forced to pay huge medical malpractice insurance premiums, and the practice of medicine is compromised when doctors based their decisions on fear of being sued, not the health needs of their patients. My safe harbor proposal is that if a medical practice or hospital had a written policy of procedures designed to prevent the type of malpractice that is at issue in a case, and the policy was implemented and regularly enforced and internally audited for compliance, then negligence cannot be proven. Similarly, if a surgeon or delivery obstetrician had a checklist of risks to prevent, a list that multiple doctors double-checked at the time of the surgery or childbirth, and the negligence at issue was on the list, then the doctor would have entered a safe harbor.

This is simply common sense: if the doctors were taking every possible systematic action to limit risk, then they were not negligent. Such precautionary policies would protect patients from accidents far more effectively than the tort lawsuits that drive up medical costs. Such a negligence test would cut frivolous lawsuits. State legislatures can codify my safe harbor rule, but clever judges could tacitly incorporate it into preexisting common law med mal negligence standards.

5. Put a statutory dollar limit cap on damages. My understanding is that a civil trial is really just a popularity contest in which the jury votes for the lawyer it liked the most. Instead of faithfully interpreting the judge’s instructions to the jury (which are often so technical that only a lawyer could properly apply them), the jury awards lots of money to the party it likes and punishes whichever parties it disliked, by making them pay huge damages. Usually poor old helpless plaintiff Mr. P, the janitor with a wife and five children who is suing because he broke his leg, is more sympathetic than the rich big business defendant Corporation D, especially when Mr. P’s lawyer slyly insinuates that D cut corners on safety in order to make a profit. This is the open secret, the 800-pound gorilla in the room, when people talk about tort lawsuits and tort reform. This is also one reason why “loser pays” is ridiculous: from a practical, pragmatic, no-nonsense point of view there is no reason to believe that the loser is the one who deserved to lose.

The right to a jury trial in cases that are “at law” (i.e. where the plaintiff seeks money) is constitutionally “inviolate,” and I leave for another essay the question of whether jury trials should be comprehensively reformed. However, at a bare minimum justice demands that we solve the problem of headstrong juries by removing jurors' discretion to award damages in excess of what the intent of the law indicates, simply because they happen to feel sympathy for one side or another. Activist judges who do not faithfully apply the law are a problem, but so too are activist juries. A legislative statutory solution to place reasonable, honest dollar value caps on each of the different types of damages, or to lower the caps that already exist, is one feasible fix.

In conclusion: “loser pays” is far inferior to the American Rule, in which each party pays his own attorney’s fees regardless of who wins or loses the trial;but there are tort reform solutions available if voters elect legislators and judges who will use them.

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