Trial by jury is scourge of U.S. courts - Column

0 Comments | Insight on the News, Dec 12, 1994 | by Richard Grenier

In the good old days, officers of the court, acting for Hilton Hotels, would have thrown former Navy Lt. Paula Coughlin into a pond. If Coughlin had sunk to the bottom, it would have proved her innocence and truthfulness, and the Hilton people would have owed her $6 million for failing to protect her from Tailhook roughnecks. If she had floated, it would have proved she was lying. In an age when nobody could swim, God would have decided whether she lied - and lived.

When trial by jury was introduced in England to replace trial by ordeal, it was unquestionably an improvement. Trial by jury enjoyed high favor in the enlightened world through the 18th century and was passed from England to the United States. And there it still rests in our Constitution's Sixth and Seventh amendments.

Trial by jury, indeed, has expanded in our great democratic nation as nowhere else, growing like some bacterial fungus to the point where during the last decade ignorant and often quite silly jurors have dished out awards of millions and even billions of dollars. Why should Paula Coughlin waste time with the Tailhook Association when she could target the Hilton Hotels.

In all frankness, our legal system makes us the laughingstock of the civilized world. France, Germany and many other European countries have an entirely different legal system that only occasionally uses juries - made up of select, qualified people. Japan and India attempted trial by jury and threw it out. Israel never even tried it. "But Britain!" American lawyers plead.

Well, pressed by the complexities of the modern world and increasingly seen as as unworkable, trial by jury has been in spectacular retreat in Britain. Only 5 percent of criminal cases there are tried by jury, along with 1 percent of civil suits. British juries, when used, convict on 10 votes out of 12. The "peremptory challenge" no longer exists. (In the United States, O.J. Simpson is allowed 20.)

In Britain, "barratry" and "champerty" (two words unknown to the American public) are strictly illegal. "Barratry" is incitement to litigation. And "champerty" is a solicitor or barrister taking a share of a lawsuit's winnings (what we'd call a "contingency" fee). All illegal. If the plaintiff loses in Britain, he or she is compelled to pay the defendant's legal expenses. In short, if we were to adopt mother England's current system, perhaps 90 percent of our legal profession would be wiped out overnight.

In The Jury: Trial and Error in the American Courtroom, Stephen Adler, legal editor of the Wall Street Journal, grimly predicts that a jury system that works as badly as ours "shouldn't, and won't, survive." He reconstructs the way jurors behaved in six conspicuous trials - one of which, in his judgment, was decided fairly, the other five ludicrously. He encountered lots of sincere, serious people who were "missing key points, focusing on irrelevant issues, failing to see through the cheapest appeals to sympathy or hate and generally botching the job."

Adler takes us into the world of highly paid "jury consultants" who select jurors much as they would potential buyers for soap or breakfast cereal. We visit a giant financial struggle between Brown & Williamson and Liggett & Myers, where jury members hardly understood a word of what was said to them. (One juror thought computer software was made of paper.) A Texaco worker coaxed $17 million from a Los Angeles jury when she claimed she'd been passed over for promotion because she was a woman. But for Texaco this was nothing compared to the $10.5 billion (repeat billion) it was ordered to pay Pennzoil in a takeover-related battle. Jurors confessed afterward that they'd added $1 billion for every Texaco witness they disliked.

But Adler is a true believer in the jury system as a bastion of democracy. He quotes Alexis de Tocqueville for moral backup, coyly omitting passages where Tocqueville notes carefully that the jurors he's talking about have been discriminatingly selected by judges "to remove unworthy or incompetent jurymen" - a process Adler finds odious. Adler also is a starry-eyed believer in a little-known doctrine called "nullification by jury," according to which jurors have "an absolute power to refuse to follow the law if they consider it unjust."

So what with American judges placing themselves above the law, and now jurors placing themselves above the law as well, there are moments when one is tempted to throw all of them, including Adler, into a pond along with Coughlin. Whether they floated or sank to the bottom would be God's business.

Richard Grenier is a columnist for the Washington Times.