Part 2: The Jury (It’s Not a Jury of Your Peers)
In the first part of this series, we noted the particular challenge of trying a complex or technical case before a jury. This is an important consideration because, even though trial may not be the end game, litigation matters can sometimes take on a life of their own.
The phrase “jury of your peers” arises from the Magna Carta (1215). At the time, it meant persons who actually knew the parties, the facts, or had the duty to discover the facts. The concept of the jury trial as it was understood by the Founding Fathers was intended as another check on government power. While the jury may work well in that role, the advent of tort litigation around the turn of the 20th Century and cases of ever increasing complexity has put new strains on the efficacy of the jury system.
The inability of the jury to comprehend and render informed decisions on highly technical and complex issues has given rise to a debate about the usefulness of the jury trial in modern jurisprudence. Laura Mansnerus of the New York Times observed that “it’s possible that if there is a problem with juries, it’s not that jurors have gotten any dumber, but that the questions have gotten harder.” This may well be the case; however, because of the jury selection process, you can be sure that it is highly unlikely that anyone on the jury will have more than a cursory knowledge of the subject matter at hand, if any.
The fact of the matter is that a jury is not chosen per se, but rather is what remains after certain panel members are eliminated. As the panel from which the jury is to be selected is seated for questioning by the attorneys, a process known as voir dire, the first twelve (or at least six in federal court) are the jury. As potential jurors are “struck,” the jurors within the first twelve/six will change.
Strikes can be “for cause,” or peremptory (without cause). There is no limit to the number of strikes for cause. Following strikes for cause, each side has a certain number of peremptory strikes, which can be made for any reason or no reason at all, except race-based. The number of peremptory strikes depends on the size of the jury and how many parties are involved. If there is anyone with subject matter knowledge still remaining after the strikes for cause, one side or the other will usually strike them peremptorily. If the case is very technical or complex, it is likely that those jurors are in over their heads.
What happens next depends on the skill of the lawyers in presenting their case. Good lawyers will simplify and demystify the case, presenting it in a manner that is easily understood by the jury, a process that is as much art as technical skill. We shall explore this more in the next part of the series.
When it comes time to decide whether to litigate (or, if you have no choice because you’ve been sued), we can help. We have both the technical expertise and the trial expertise to help you make the right choice; and, if the choice is litigation, to do it right.
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By Chris Kilgore