Here’s what sounds like a genuinely terrible idea. If people have a conflict they can’t resolve on their own, get twelve complete strangers who know absolutely nothing about the facts and have zero expertise on the subject matter and ask them to figure out what happened as a matter of fact and what should happen as a matter of law. Who’s with me? While people previously presented with the limited options of trial by combat or ordeal might understandably have jumped at the chance to explain themselves to pretty much anybody, nine-hundred years removed from the prospect of being brained with a mace or drowned on a dunking stool, more and more people find the prospect of appealing to a jury of their peers less and less appealing. You’ve probably even heard some courthouse wags say the oft’ repeated bon mot, “justice is way too important to leave up to twelve people who couldn’t find a way to get out of jury duty.” For some reason people don’t trust that other people are capable of doing the important work we ask jurors to do. I think they think there must be a better way. I also think they’re wrong.
One of the most interesting parts of the judge job is that I get to watch juries do what they do up close but not personal. It is perspective that is different from and unavailable to the lawyers and litigants caught up in the fray. It has allowed me to more fully consider the genius of the twelve-person jury in a way that was not possible when I was trying cases and couldn’t help but see the jury’s decision as a “win” or “loss.” As lawyers, we take it for granted that any time a jury does what we asked them to do, it is because of the terrific job we did asking them to do it. When they don’t, we assume it must because they didn’t listen, didn’t care or were just too stupid to understand. The view from the bench is very different. The immense responsibility of making the decision in any case is awesome. When a person goes from being an individual on jury duty to being an actual juror on an actual jury, it gets very real very quickly for them. The weight of that responsibility is not something they carry lightly. I have no doubt but that jurors do what they do because they are satisfied that it is what the facts and law oblige them to do. If I ever go back to trying cases, the most important lesson I will take back with me is that it isn’t the lawyers’ job to get over on or get around the jury. The lawyers’ job is to help the jurors do their job.
You should assume that other people take their obligation as jurors just as seriously as you would if you were on a jury. Just as seriously as they/you should. So much so that everything they do is driven by their individual and collective desire to do what is asked of them as well as possible, and the corresponding fear that they won’t. That’s why they listen so hard that they are both physically and mentally exhausted at the end of each trial day, but still can’t sleep at night. That’s why they ask to review testimony and send out all those notes asking the court for information, clarification, and guidance. That’s why they are so willing to deliberate well beyond the point that, from the outside looking in, the parties think they should have to. It’s also why after they reach their decision, they are so anxious for affirmation and/or absolution from the Judge.
Most judges dismiss the jury from the jury room rather than the courtroom. This post-verdict get-together gives the judge a chance to personally thank the jurors for their service and see if they have any questions. They always do. But invariably and inevitably the answer they are looking/hoping for is, “Yes. You got it right.” So, I make sure I answer their questions in way that assures them that they did. I can say and do that with confidence in every case because, regardless of what they ended up doing, they are the only twelve people in the world who listened objectively to all of the evidence knowing that they were going to have make the decision, and then talked about it until they were able to come to a decision they could all live with everyone else living with. In a world where you can’t get twelve people to agree to leave a burning building, twelve people agreeing on the facts, the law, and the attendant consequences should inspire extreme confidence and maybe even a little awe.
The jury system is a Tinkerbell Institution. It only exists so long as people believe in it. I truly believe, and I think you should too. So, the next time you hear those magic words, “the jury decided today,” don’t shake your head, grit your teeth, or roll your eyes. Clap your hands!
I am an unabashed jury fanboy. I love to watch them work. I love how hard they work. I love watching them take great care in doing the work they do, and great pride in having done it well. But it is a process – sort of the jury service equivalent of denial, anger, bargaining, depression, and acceptance.
Step One is the feeling of incredulity that comes with getting a jury summons (i.e., “You’ve got to be kidding! Why me?!”). This is immediately followed by Step Two in which the recipient lets go with a series of colorful expletives as a precursor to trying to figure out how to get out of jury service – a/k/a Step Three. Step Four is showing up. Regrettably and for a wide variety of reasons, some totally legitimate some totally not, a huge percentage of the people who are summoned for jury duty don’t make it to Step Three (e.g., in Jefferson County we have to send out approximately 2,500 summonses to get the requisite 250 jurors every two weeks). Those who do make it to the courthouse experience the general malaise and sulkiness that comes with Step Five (i.e., “I’m here because I have to be, but I don’t have to like it”).
Where it all comes together to make the jury system so amazing is Step Six – acceptance. People rise to the occasion every time once they accept the awesome responsibility of be being a juror. It gets real when they get to the jury pool, it gets realer when they go through jury selection, and it gets realest when they find themselves sitting on the jury. Everything else goes away and their only concern is doing the job they didn’t ask for and don’t won’t as well as they possibly can. That gets us/then to Step Seven – appreciation. When jurors leave the courthouse, they are glad they came. They got to see how the justice gets made and it wasn’t what they thought it was going to be. They see how seriously everyone takes their respective responsibilities within the system and how much those people respect and value how seriously the jurors take theirs. When someone who has been on a jury hears the magic words “the jury decided today” they hear it differently than they did before. Where they once might have been indifferent or skeptical, they are now deferential. They take it on faith that the twelve people on that jury were sincerely committed to doing the job they probably didn’t want. They assume that those people listened attentively to the evidence, discussed their opinions respectfully, applied the law strictly, and decided whatever the case was fairly. They think that whatever those jurors decided, they did what the facts and the law obliged them to do. They hear it that way, because that’s what they did when they did their jury duty – and they’re right.