Decreasing Jury Trials Undermines the Public

OPINION: Transparency and citizen participation are keys to the fair administration of justice.

, The National Law Journal

   | 7 Comments

OPINION: Transparency and citizen participation are keys to the fair administration of justice.

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What's being said

  • Hervé Gouraige

    Christopher, thank you for pointing out a grammatical issue. I agree that the "modern tendency is ... to restrict "less" ... to things that are measured by amount and not by size or quality or number." While I may have been ignorant of, or indifferent to, "modern idiomatic restrictions," I am not sure, as you indicate, the grammar is incorrect. H.W. Fowler, "A Dictionary of Modern English Usage" (2d ed. rev. by Sir Ernest Gowers, OUP, 1965), p. 330. In any case, the modern tendency to use "fewer trials" reads better.

  • Dara

    Suja, You proposed that criminal prosecutors should not decide civil (or family) cases; most parents of minor children would quite likely probably agree. But the average criminal prosecutor might likely be as fair and even-tempered, or more, and probably far less violent, sadistic and cruel than the typical 800 pound gorilla presiding in child litigation cases.

  • Dara

    In response to Professor Shakespeare, he/she is correct that jury trials would likely be much better in deciding family cases than a single judge. Perhaps better in such cases there be a male and a female judge, with co-equal powers. In any case, using the best, most well-trained judges for family court cases, rather than the worst and/or least experienced ones, would be even more effective/productive, since juries only come in at the end of lots of litigation. In family cases, in particular, inter-parent involving minor children, according to widely court-recognized and court-sponsored research, litigation (i.e., adversarial dispute resolution) is to be used only as the absolute last possible resort b/c it is generally harmful to children, parents and families. The best family court judges know, not just from modern research but also from best practices and good common sense, to treat the parents equally, and to ensure that all issues are resolved through inter-parent com- munication and mediation. They know how to be efficient/effective in resolving such conflicts, while causing the least harm to children, parents and to the extended families impacted, and will effectively facilitate and ensure inter-parent communication, cooperation and agreement with respect to all issues affecting minor children. The best family court judge will remain, with great diligence and discipline, zealously neutral, and will scrupulously observe laws and best family court practices touching on equal protection, due process and rules of evidence if an issue is litigated, A great family court judge will cause managably amicable resolution, with low recidivism, at reasonable cost, in 95% or more separation/divorce cases involving minor children to which he/she is randomly assigned, and will achieve resolution results long, long before the trials. An extremely well-trained and experienced family court judge will not only treat parents equally, but also telegraph just neutrality, documenting every, even momentary cooperation or agreement, and will encourage, and order if necessary, mediation prior to and in place of litigation, while staying the litigation. Ensuring that just our family court judges are properly selected, and are the best, most well-trained judges in any given state court, just that one court reform, could potentially reduce the bankruptcy, incarceration, unemployment, homicide, suicide, abuse, torture and massacre rate in the U.S. by upwards of approximately 50%, and would greatly improve the overall productivity, health, safety and the well-being of Americans. However, this reform would be financially devastating to a relatively small, on the whole, group of lawyers who regularly litigate divorce, child custody, access and support cases/ issues. As their income is tied to creating intense, long-term inter-parent conflict, and is a direct function of the number of minor children and vulnerable parents they harm, and the severity of that harm, and as they tend to give the whole legal profession somewhat of a bruising, being the face of the legal profession to the average parent, the proper selection and training of just family court judges, done properly, would be a great cultural reform.

  • Dara

    The decline of jury trials began shortly after civil/criminal jury trials were initially established through the Bill of Rights. Now it is mostly just serious criminal cases where juries play a role (they come in at the very end of those cases, after key decisions affecting the outcome have already been made by the judge). As far as civil cases, again, juries usually play little or no role in most cases, and come in at the very, very end of the small number of civil cases in which they play a role, after key, critical decisions have been made throughout the course of a year or two of trial litigation. Except in Texas, juries play no role in family courts, which incidentally do not observe due process or equal protection laws, or evidence rules. Thus, it is family courts where we need to start placing our best, most experienced judges, rather than worst. Even when juries do play their minor role at the end of a civil case and sometimes at the very beginning of criminal cases, via grand jury, if the decision is not the decision the judge sought, there is often a directed verdict. Well, we tried to do something about our courts, and the jury system was not a bad idea in theory, but that system is absolutely no excuse to not require that all judges, local to federal, be and are properly selected according to "judicial skills," and then formally trained through accredited state judicial curricula, it seems this should be at least one to two years full-time in duration. I am an attorney with close to twenty years of trial and appellate litigation experience, and am a fairly effective advocate for my clients, but this has little or nothing to do with whether I would be a good judge, a neutral having exceptional judicial skills. Those skills would have to be tested and analyzed, prior to my admission to an "accredited" judicial college, of which we have none in the U.S. currently.

  • Suja Thomas

    I agree that juries, not prosecutors, judges, or arbitrators, should decide criminal and civil cases. As the author points out, there is a value to public participation. I talk about the subject in my recently released book The Missing American Jury. More information is found here: com/

  • William Shakespeare

    Jury trials MUST be implemented in family courts. It‘s time to stop judicial discretion (read: bias and favoritism to certain lawyers) involving custody matters, imprisoning people for excessive civil support debts that cannot be complied with in over 75% of all cases, false allegations of domestic violence and/or child abuse, which are all issues of consequences of magnitude. Jury trials in family courts would bring sunlight to the darkness of the domestic relations conspiracy and fraud.

  • Christopher Bowen

    "less jury trials" - This phrase appears twice in the article. It is grammatically incorrect. The correct phrase would be "fewer jury trials", because "trials" is the plural form of a noun that can be counted. I do not want to nitpick, but a journal that has professional writers and speakers (i.e., lawyers) as both its audience and authors should not have these mistakes.

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