Americans Should Recommit to Service -- Starting with Jury Duty

FORUM COLUMN
Originally published in the June 3, 2009 edition of the LA Daily Journal as part of Loyola's weekly Civil Discourse series

 

By Lauren E. Willis

 

Each year I discuss with my civil procedure students the civil jury right, praised by Thomas Jefferson as "the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution," but also lambasted by Jerome Frank as assuring "uncertainty, capriciousness, lack of uniformity, disregard of former decisions - utter unpredictability." Does the cross-section of the community supply our civil justice system with careful wisdom, or with lazy prejudice?

 

Having just completed two and a half weeks of civil jury service, what I observed was both disturbing and inspiring.

The disturbing part began in the jury assembly room, with numerous members of the pool complaining loudly into their cell phones about sacrificing even one day of their lives to come to the courthouse.

 

Once the panel was called to the courtroom and voir dire began, the number of immovable doctor's appointments, uncooperative employers, insurmountable childcare problems and unalterable business meetings was astounding. These people were not lying, but either they were unwilling to ask for accommodations, or their doctors, employers, friends, family members and business associates were unwilling to offer assistance. The result was obstacle after obstacle to jury service.

 

Once the specifics of the case were explained, and the "any reason why you could not serve fairly as a juror in this case" question was asked, the lying began. Some prospective jurors genuinely had experiences that could have compromised their impartiality. But many who raised their hands to proclaim their personal biases were those same people who had work, health and childcare issues - and even more tellingly, were the same ones complaining on their cell phones earlier that morning. About a third of the 60 sitting in the courtroom that day were so unwilling to participate that it appeared they would lie to a federal judge in an attempt to avoid service.

This is not to say that the rest of us were clamoring to serve. We all had other things to do in the next two or three weeks the trial was expected to take. The court and counsel completed jury selection (politely out of earshot at sidebar), and as the numbers of the selected jurors were announced, there were audible sighs of relief heard from those whose numbers were not called.

 

When those of us who were selected were shown to our jury room for the first break of the day, there were several glum faces. "This sucks," one young man complained. Another said, "I don't understand why they picked me. I'm dumb. Why don't they just use smart people?" "My boss is going to kill me," added a young woman. "My mom is going to kill me," said an even younger woman, "I am going to have to ask her to take care of my daughter early in the morning, and that is the only time of day my mom has to herself."

Then the heartening part began. "How would you feel if this were your case, or if you were the one being sued? Wouldn't you want people like you on the jury?," one older man offered. I, the middle-aged law professor, contributed my own encouraging words about how important it was for us all, with different life experiences, to serve.

 

The next day nonetheless started badly. The young mother was late - very late - and in the meanwhile the self-proclaimed "dumb" young man grumbled, "I don't know why I even showed up. My friends told me they never went when they were called and they didn't get arrested."

 

He was immediately outnumbered. "C'mon, man," cajoled another fellow on the jury. A middle-aged woman piped up, "I think of it this way: All my life I was never picked for anything. I was never picked for softball. I was never picked for any clubs. But I was picked for this jury. We were all picked for this jury. This is going to be a great experience for all of us."

 

On the third day, the testimony was a bit slow and the courtroom a bit warm. The young man who wished he had never shown up shut his eyes while we were in the jury box. One juror's finger reached over and tapped his arm while another juror's foot kicked his chair. When we left that evening, the young mother promised us all that she would be on time the next day.

 

Over the next several days, the childcare issue was resolved, the complaints fell off and friendships started to form. The young fellow who had thought jury service would "suck" caught himself several times wanting to ask questions about the case, even though deliberations had not begun so we could not yet discuss it. The woman who feared her boss would "kill" her decided to apply for a new job, and we all rejoiced when she received an interview.

 

Having heard during voir dire that I was a law professor, my fellow jurors began asking me questions. Although I could not answer anything specific to the case, I could tell them generally about the American legal system. I explained the difference between state and federal courts, and that we were serving in federal court. As I told them about the history of discrimination in the jury system, we looked around and realized that only one of us would have had the right to be there a century ago-among us were two Asians, two Pacific Islanders, three Latinos, one white Anglo woman and only one white Anglo male.

 

At the end of the second week, closing arguments were completed, and we could finally talk about the case. For four days we talked. There were three relevant time periods in the case, and we had to answer a series of special verdict questions about each period.

We all began with slightly different views on the evidence, and so we argued. We re-read the exhibits, reviewed our own notes and combed through our memories as to the words of each witness and the credibility of each when it came to crucial testimony in the case. We discovered that even the closed-eyed fellow had been listening to every word spoken in the courtroom, and had opinions as strong as anyone else.

 

But we did not just argue, we also listened and changed our minds.

 

Sometimes we became frustrated, either with one another or with the process in general, and on one issue we reached an impasse. "Maybe we're just a hung jury," suggested the young woman interviewing for a new job. "No," replied the older man, "it is our job to keep working to figure out the right answers to the questions the judge gave us."

 

"Let's just give him [the plaintiff] a million dollars and we can go home," said an exasperated juror who had been leaning against the plaintiff on the issue at hand. "It's not about giving money to the guy," responded a juror who had been leaning more toward the plaintiff, "It's our duty as the jury to make the whole system works fairly."

 

So we kept talking, and we kept listening. We brought our lunches back to the jury room so we could keep working. And we finally came to a verdict.

 

After the verdict, we walked one last time together to the juror parking lot. As we said goodbye, the man who wished he had never shown up spoke: "You know how you guys were telling me this was going to be a good experience? I didn't believe you when you were saying it." "But," he added sheepishly, "you were right."

 

Every year in class, I quote Alexis de Tocqueville's observation: "[T]he jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it how to rule well."

 

Today, jury service is not merely the best way for us to participate in making our country function well, it is the only public service most of us are ever required to perform. Sitting in the jury room, it struck me that we would not find jury service to be such an imposition if national service were an ordinary part of our lives, a mandatory stage of young adulthood. Whether by watching a child or covering an assignment, neighbors and co-workers would expect to pitch in as an extension of our collective obligation to serve - and right to rule - our own country. If my jury experience was representative, Americans are capable of doing far more than we are asked to do now, and we would all be better off if we did more.

 

Lauren E. Willis is an associate professor at Loyola Law School Los Angeles.