A Tribute To The Trial By Jury

The mail was scattered across the dining room table.  One envelope, bearing the seal of our local Clerk of Court, caught my eye.  A summons for jury duty!  There must be some mistake.  Surely those over 50 years of age are exempt?  The week for which I was called, I was scheduled to be out of town, so our Clerk of Court transferred me to another term.

On Tuesday, January 3, 2012, I reported to the Jury Assembly Room at the Greenville (South Carolina) County Courthouse, home of both the Court of Common Pleas (civil) and General Sessions (criminal).  I thought my chances of actually serving on a jury were remote, given my status as a trial lawyer.  But you never know; after all, I did serve on a jury back in 1990, not long after I started practicing law.  Every lawyer ought to have such an opportunity.

Shortly after I arrived, around 9:00 a.m., I learned that they were not holding criminal court that week and that there were only two civil cases on the trial roster.  This had the potential to be a very short week!

We heard welcoming remarks from our Clerk of Court, Paul Wickensimer, and members of his staff.  Then, we watched a short film, which explained juror responsibilities and provided an overview of the South Carolina jury system.  Following a five-minute “stretch break,” the presiding circuit court judge entered the room and apologized profusely for the short delay.  He then explained that the only two cases on the trial roster had been resolved and that we were free to go.  Whew!  Released from captivity.  What a relief.

Then, as I left the courthouse with my fellow jurors, I felt guilty for this sense of relief.  Would it have killed me to have served on a jury for a day or two?  After all, as Sir John Fortescue, Chief Justice of the King’s Bench, stated in 1468: “Trial by jury is the most rational and effective method for discovering the truth.”  Our judicial system was founded on the right to a jury trial for most civil and criminal cases.  The U.S. Constitution, most state constitutions, and the Sixth and Seventh Amendments to the Bill of Rights address the right to a trial by jury.  Having experienced my brief tenure in the Jury Assembly Room, I was reminded of why I became a lawyer in the first place.  I have always enjoyed the opportunity to work with clients to solve their problems – whether through a jury trial or settlement.

Most agree that England’s King Henry II was the “father” of our modern jury system.  Through a series of enactments, Henry II extended the use of the English jury to many areas of civil and criminal litigation.  It was Henry II’s son, John, who sealed the Magna Carta in 1215 at Runnymede.  The American Bar Association erected a marble monument three miles east of Windsor Castle to commemorate this event, which established as a matter of constitutional right representative democracy and trial by jury.

William Blackstone was a leading scholar and author of a commentary on English law.  Blackstone was an advocate of the right of trial by jury, commenting:

Our liberties cannot but subsist, so long as the right of trial by jury remains sacred and inviolate, not only from all open attacks, but also from all secret machinations, which may sap and undermine it.

One of the leading causes of the American Revolution was the denial of a trial by jury.  John Adams made this statement in 1774 about trial by jury:

Representative government and trial by jury are the heart and lungs of liberty.  Without them, we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.

Alexander Hamilton was one of the principal advocates of the adoption of the Constitution and supported the concept of civil jury trials:

The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon trial by jury; or if there is any difference between them, it consists in this; the former regarded as a valuable safeguard to liberty; the latter represented as the very palladium of free government.

Over the centuries, there have been many landmarks in the development of an independent, impartial jury.  This led Winston Churchill to write in 1956:

The jury system has come to stand for all we mean by English justice, because so long as a case has to be scrutinized by twelve honest jurors, defendant and plaintiff alike have a safeguard from arbitrary perversion of the law.

In addition to the brief research I conducted to collect these quotes on the importance of trial by jury, I also searched my inbox for an email one of my partners, Howard Boyd, authored several years ago, following a particularly satisfying jury verdict:

We do not need to be afraid to try cases to juries.  We need to properly evaluate the case for settlement purposes, but if a reasonable settlement cannot be obtained, we need to convince the client to try the case.  At mediation, if the plaintiff doesn’t get into an acceptable range for settlement, simply advise the mediator and opposing counsel that we appreciate their attendance at the mediation but we will be delighted to see them at the courthouse for a jury trial.  Juries almost always do the right thing.  While there certainly have been bad jury verdicts, and occasionally a jury will do something crazy and deliver a runaway verdict, often those cases can be corrected on appeal or settled during the appeal for a much more reasonable amount, and these results are not typical.

As many of you know, I have decried the decline of jury trials over the last few years, and hope we can once again restore the jury trial to our arsenal of defense of civil litigation.  There is simply nothing more grand than a jury trial, and no feeling more thrilling than a defense verdict after a hard-fought trial.  While trials are stressful and extremely hard work, the thrill of victory makes it all well worthwhile.  Even if we don’t win, let’s always remember the immortal words of Teddy Roosevelt:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better.  The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs, who comes up short again and again, because there is no effort without error and shortcomings, but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions, who spends himself in a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”