President’s Message: The Jury System Under Fire by Philip O. Foard
Everywhere I go these days arguments of counsel are being limited in the inter- est of judicial efficiency. I thought it was getting personal when, in February, I re- ceived an order from Chief Judge Murphy limiting my argument to 10 minutes, until I noticed it was an experiment and applied to all arguments during that month. As president this year, I hope MTLA will be able to substantially contribute to a greater trust and confidence in our ju- dicial system, particularly regarding the essential role of the jury. Indeed, my as- sumption of the role as MTLA’s president is mostly because of a past president, my mentor and partner of 30 years, George White. He was an energetic supporter of this organization and loved being a trial lawyer. Anyone can be a lawyer, but not everyone can be an advocate before one’s peers, and he was one of the best! For those lucky enough to witness one of his patented performances, who can forget his opening statements, packed with all the testimony he might not oth- erwise get in? He had an unnerving habit of calling the defendant as first witness. He had a slashing cross (his direct was a little shaky – George never met a leading question he did not love). But his greatest talent was his natural
intuitiveness and identity with the jury! He always said and did the things they were thinking — and they loved it! He was one of them, their advocate against all the b-s, giving them the confidence to exercise their collective wisdom. Indeed, it was the constant vilification of juries in the 80’s by the self-same special interests it had been empowered by our constitu- tion to protect against that pulled me into the fray!
As lawyers, our wake-up call was the success of the Thatcher government in eliminating juries in civil cases in the late 80’s.
Imagine our spiritual ancestors in
the great common law willingly getting rid of the most historically significant, most revered centerpiece of our jurispru- dence, recognized around the world as ensuring the integrity of our courts. Can it happen here? You may say “no” because judgment by one’s peers is pro-
Summer 2000
tected by both state and federal constitu- tions. But it is happening here! Maybe not as blatantly as in England, but each year legislatures across the country pass laws relegating consumer/victim griev- ances to yet another state bureaucracy or commission. Appellate courts, straining under the huge back-log of cases and pushed by uni- fied court systems and/or judicial bureaucracies, increasingly see juries as in- efficient. These trends have been led by a Supreme Court which, in the last 10 years, has given the Federal Arbitration Act sa- cred writ status, eliminating causes of action under state consumer protection laws in favor of binding arbitration. Interestingly, the general public sees the inefficiencies in the court system dif- ferently. According to the American Bar Association, 90% of those surveyed lay the blame on the stall tactics of the rich and powerful special interests in playing the system, making it unaffordable for every- one else.
The one good thing that’s come out of all the sound bites and anecdotal sto- ries vilifying juries, is that actual studies are being conducted. The bad news is that those studies show the general public does not see the issue as a jury problem but as a failure of the justice system in general. Last year the American Bar Associa- tion and the Hearst Corporation sponsored a major survey culminating in the Conference on Public Trust and Con- fidence in Our Judiciary held in Washington, D.C. Briefly, the major find- ing was that, when asked to rank those institutions and professions from the standpoint of the amount of trust and confidence reposed in each, only 23% responded as having great confidence in the courts — just ahead of our legislators at 18%, and well below local police at 45%.
This lack of trust and confidence, ac-
cording to participating state teams, has produced an avoid-jury-service-at-any- cost syndrome and a generalized feeling among those who do serve that they are intruders in a closed culture — it’s not user (or juror) friendly. Secondly, the constant bombardment
Trial Reporter
of negative advertising and media hype has greatly eroded not only trust in the system, but it has also totally obscured the historical (and present) purpose of citi- zen juries — which was and is to ensure, by citizen participation, fundamental pro- tections against the abuse of power and bear witness that the judicial branch is dispensing equal justice for all. Of the 35 state teams responding to a
request of the conference to prioritize is- sues and strategies, one third, including Maryland, ranked education and public awareness of the role of citizen juries as their No. 1 priority. The bottom line then, to achieve greater confidence in the courts, rests as always with the individual juror’s participation in the system. If ju- rors are made aware of their essential role, and the experience is a positive one, they will become the judicial system’s greatest emissaries to the public at large. Arizona was the first to take on the task of making its courts user friendly to ju- rors, and Maryland has also moved in that direction, having just completed a report on jury use and management in April of this year. But it is on the issue of public aware- ness that I think trial lawyers have a unique role to play. It is my hope, there- fore, that MTLA will this year approve the formation of a non-profit foundation for the purpose of educating the public on the importance of citizen juries as a co-equal right and duty (along with the vote) in guaranteeing this great democ- racy as theirs! Again, remember that just 30 years af-
ter Winston Churchill wrote in 1956 that, “The jury system has come to stand for all we mean by English justice.” – the sys- tem was abolished! MTLA’s foundation will be a great and fitting tribute to George W. White, Jr. and all other trial lawyers who labor to level the playing field on behalf of their clients; and who, like George, realize there is no greater tool ever devised to bring it about!
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