Dear Readers,
Welcome to the February edition of the Civil Jury Project’s monthly newsletter.
This issue relaunches a section of the newsletter—to be included in this and future issues—that contains testimonials from recently discharged jurors. This section will now be entitled “What Jurors Say.”
In addition, this issue features a piece by one of our research fellows, Michael Pressman, analyzing high-low agreements, especially with regard to whether such agreements might encourage more jury trials. An Op-ed by our judicial director, the Hon. Mark A. Drummond (ret.), argues that labeling senators "jurors" in the context of the ongoing impeachment trial is misleading and damaging to our jury system. Specifically, senators are not bound by restrictions that typically apply to jurors. I share Judge Drummond's views and have co-signed the piece.
Finally, a piece by one of our judicial advisors, the Hon. Arthur Gamble (ret.), discusses jury hardship excuses and analyzes how judges should treat jurors who claim hardship.
Thank you for your support of the Civil Jury Project. You can find a full and updated outline of our status of projects on our
website
. In addition, we welcome op-ed proposals or full article drafts for inclusion in upcoming newsletters and on our website either by email or
here
.
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Sincerely,
Stephen D. Susman
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February 19, 2020
Kansas City Jury Improvement Lunch
Kansas City, MO
February 19, 2020
Dinner Event by the Atlanta IP Inn of Court: "How to Help Juries Decide Patent Cases"
Atlanta, Georgia
March 26, 2020
Jury Improvement Lunch
Boston, MA
April 1, 2020
Dinner Event by the Combined Minneapolis Inns of Court: "Jury Trial Innovations"
Minneapolis, Minnesota
April 2, 2020
Speech at the Harvard Law Forum:
"The Disappearing Civil Jury Trial: What Can Be Done About It?"
Cambridge, MA
April 23, 2020
Jury Improvement Lunch
Fort Lauderdale, FL
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High Low Agreements: When Are They Enforceable? Do They Encourage Jury Trials?
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Included in
the November 2019 issue of our newsletter
was an article written by Judge Clare E. McWilliams, Illinois Circuit Judge, in which she discussed high-low agreements—agreements that specify minimum and maximum damages sums and thereby provide insurance to parties that proceed to trial. If the dollar sum of the verdict returned falls between the maximum and minimum sums agreed to, then the plaintiff receives the dollar sum of the jury verdict. If, however, the verdict is for a sum below the minimum (or a no-liability verdict), then the plaintiff receives the minimum that was agreed to, and if the verdict is for a sum that exceeds the maximum, then the plaintiff receives the maximum that was agreed to. In her article, Judge McWilliams presented the basics of how high-low agreements work, and she also discussed some of the issues that one should be mindful of in connection with their usage.
This article will pick up where Judge McWilliams’s article left off, and further discuss high-low agreements. This article first explores questions pertaining to the enforceability of high-low agreements; next, it explores the questions of whether high-low agreements might encourage more jury trials, what the effect of the agreements might be, who uses them, and why they are used.
In short, the findings are as follows:
(1) Regarding the question about enforceability:
High-low agreements appear to be enforceable in all U.S. jurisdictions. However, in light of the fact that they are contracts that involve and affect the court and potentially also other parties to the case, there are additional considerations and procedural safeguards pertaining to these contracts beyond the issues that typical contracts implicate. Thus, most jurisdictions have certain restrictions and guidance regarding these agreements (and their enforceability). This article describes these issues below. Being mindful of these constraints—and the issues that they implicate—is of key importance for those who might consider entering into these agreements.
(2) Regarding the second category of questions:
This article provides an overview of the key findings from a recent study (and the corresponding article that articulates the study’s findings) carried out by J.J. Prescott, Kathryn E. Spier, and Albert Yoon (“Trial and Settlement: A Study of High-Low Agreements”)
[1]
. In this study, the authors first articulate a theoretical model of high-low agreements. Then, using claims data from a national insurance company, they describe the features of these agreements and empirically investigate “the factors that may influence whether litigants discuss or enter into them.”
[2]
Their empirical findings are consistent with the predictions of their theoretical model. The study speaks to our questions of whether the agreements encourage more jury trials, what the effects of the agreements might be, who uses them, and why they are used. Among their various findings is the finding that
high-low agreements indeed do significantly encourage resolving matters in trial rather than via full settlement
; parties are more likely to go to trial than they would be if high-low agreements were not vehicles that existed. This and other findings of their will be elaborated upon below.
Parties and attorneys should strongly consider high-low agreements as they weigh their options in their cases; there are many situations in which these agreements can be desirable. Additionally, for those who recognize the various benefits of jury trials, it is heartening to see that there is evidence that high-low agreements indeed encourage jury trials. Thus, to the extent that one wants to prevent the extinction of the jury trial, promoting the usage of high-low agreements might very well be a step in the right direction.
I. The enforceability of high-low agreements
High-low agreements appear to be enforceable in all U.S. jurisdictions. There are, however, various requirements that different jurisdictions impose on the parties to these agreements in order for these agreements to be enforceable. (Further, there are a handful of interesting issues surrounding these agreements, such as questions of how these agreements interact with rights to appeal verdicts and things of this nature.) As for what requirements and restrictions apply to these agreements, these fall into two main camps:
(1)
These agreements are contracts, and thus typical contractual principles apply, and
(2)
in light of the particular type of contract that they are (e.g., settlement agreements which thus involve and affect the court and possibly other parties to a case), there are some additional factors and procedural safeguards that pertain to this specific type of contract. The following describes a handful of these requirements and wrinkles, each in the context of a specific jurisdiction. However, the issues and requirements mentioned in the context of a particular jurisdiction typically exist in either the same or similar form in other jurisdictions as well.
Here are some examples:
New York
Before entering into a high-low agreement in a multi-defendant action, counsel should tell the court and any non-agreeing defendants about it. The New York Court of Appeals has held that when a plaintiff and defendant in a multi-defendant action enter into a high-low agreement, and the agreeing defendant remains a party to the litigation, the parties must disclose the existence and terms of the agreement to the court and to any non-agreeing defendants.
In the Matter of Eighth Judicial District Asbestos Litigation (Reynolds v. Amchem Products Inc.)
, 8 N.Y.3d 717, 872 N.E.2d 232, 840 N.Y.S.2d 546 (2007). The case in question involved claims against various manufacturers and distributors of alleged asbestos-containing products. The plaintiff alleged that he had contracted mesothelioma from his exposure to asbestos at the refinery. Before trial, the plaintiff settled with all but two defendants: Garlock Sealing Technologies LLC and Niagara Insulations, Inc.
Shortly before trial, the plaintiff and Niagara entered into a high-low agreement with a maximum sum of $185,000 and a minimum sum of $155,000. Thus, under the high-low agreement, Niagara’s exposure—beyond the minimum that it had already agreed to pay—was limited to $30,000, a range that the Court of Appeals said was “quite narrow,” suggesting that the plaintiff’s and Niagara’s true motive for entering into the agreement was to gain a tactical advantage at Garlock’s expense.
The trial court knew that the plaintiff and Niagara had entered into a high-low agreement (but not the terms of the agreement), but Garlock and the jury did not know about the agreement. The jury ultimately awarded the plaintiffs $3,750,000 in damages and found Garlock 60% liable and Niagara 40%. When Garlock found out about the high-low agreement a few days after the jury’s verdict, it moved to set aside the verdict and for a new trial. The Supreme Court denied Garlock’s motions and entered judgment on the verdict, and the Appellate Division affirmed.
The Court of Appeals reversed and it ordered a new trial. In doing so, it concluded that the trial court’s failure to disclose the existence of the high-low agreement prevented Garlock from obtaining a fair determination of its rights and liabilities. According to the court, “a high-low agreement between a plaintiff and fewer than all defendants has the potential of prejudicing the rights of the non-agreeing defendant if all parties are not apprised of the agreement’s existence.” Additionally, the court stated that secretive agreements “may . . . distort the true adversarial nature of the litigation process[] and cast a cloud over the judicial system.” Ultimately, the Court of Appeals concluded that the undisclosed high-low agreement had deprived Garlock of its right to a fair trial because the $185,000 cap on Niagara’s liability had given the plaintiffs an incentive to minimize Niagara’s liability and maximize Garlock’s. According to the court, requiring a high-low agreement to be disclosed to the court and any non-agreeing defendants, “strikes a proper balance between this State’s public policy of encouraging the expeditious settlement of claims, and the need to ensure that all parties to a litigation are apprised of the true posture of the litigation so they may tailor their strategy accordingly.”
Virginia
If there are multiple plaintiffs and/or defendants, it is important to include in the terms of the high-low to whom it applies, and how the verdict is to be determined in the event of joint and several liability. Virginia Code Section 8.01-35.1 addresses the effect of a release or covenant not to sue given “to one of two or more persons liable in tort for the same injury.” Va. Code § 8.01-35.1(A). The Code specifically provides that such covenants include high-low agreements. Under the statute, the high-low does not discharge other tortfeasors, but any amount awarded against other tortfeasors will be reduced by the consideration given for the agreement. Thus, parties cannot include in a high-low agreement any limitation on the amount of offset to other tortfeasors as to do so would deprive them of rights under the statute.
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Also, in Virginia, as in New York, the court must be aware of the high-low agreement and deem it enforceable. High-low agreements are subject to the provisions of Sections 8.01-55 and 8.01-424, both of which require courts to participate in settlement agreements. Additionally, the Code specifically provides that approval is secured through a petition process, and that the petition process requires “the convening of the parties in interest… .” Va. Code § 8.01-55. While, a court in Virginia might approve the high-low after the fact, it would behoove parties to secure approval before the trial begins.
Additionally, according to Virginia case law and the Virginia Code, a high-low agreement is a settlement, and thus the parties must request that the court not enter judgment.
See
Va. Code § 8.01-35.1;
Smith v. Settle
, 254 Va. 348, 351 (1997).
Maryland
The Maryland Court of Special Appeals concluded in
Maslow v. Vanguri
, 896 A.2d 408 (Md. Ct. Spec. App.), cert. denied, 903 A.2d 416 (Md. 2006), that a plaintiff’s appeal after an adverse judgment forfeited the defendant’s obligation to pay pursuant to a high-low agreement. The high-low agreement specifically provided that, with a jury verdict, the parties would waive any right of appeal. After the plaintiff lost on appeal, the plaintiff sought to enforce the high-low agreement. The defendant argued that the appeal was a material breach, thus permitting rescission of the agreement, and the court agreed, holding that the breach of the obligation not to appeal enabled the defendant to seek rescission.
An additional note: What constitutes a verdict?
Because parties may hastily enter into a high-low agreement, all of the issues may not be properly considered. For example, one issue concerns the possibility of a mistrial. A high-low settlement agreement requires a verdict to determine the amount of compensation. However, it might not be clear what is meant by the term “verdict.” For example, is a deadlocked jury a “verdict”? Is a deadlock jury considered a “no cause” verdict for purposes of the agreement? It would behoove parties to anticipate this possibility (and other possibilities) and reach a (written) understanding as to how a deadlock will be handled. Similarly, if the plaintiff’s counsel seeks a mistrial by intentionally violating the court’s in limine order or otherwise, does this constitute a “verdict” or is it a “no cause”? These issues are among a host of related details that it would be wise for parties to address in the drafting of their high-low agreement.
III. Questions regarding whether, and if so how, high-low agreements affect the likelihood of cases going to trial
What follows is a synopsis of the key findings from the Prescott et al. study on high-low agreements.
The authors first articulate a theoretical model of high-low agreements. Then, using claims data from a national insurance company, they describe the features of these agreements and empirically investigate the factors that might influence whether litigants discuss or enter into them. Their empirical findings are consistent with the predictions of their theoretical model. The study speaks to our questions of whether the agreements encourage more jury trials, what the effects of the agreements might be, who uses them, and why they are used.
For our purposes, the key findings are the following:
High-low agreements significantly encourage going to trial over resolving a case via full settlement, and they make parties more likely to go to trial than they would if high-low agreements were not vehicles that existed.
Among other things, the study found: Of the claims resolved without high-low activity, approximately five percent went to trial or arbitration; on the other hand, of the claims that did have high-low agreements, forty percent went to trial or arbitration.
- Claims that are expected to be have low litigation cost and have highly volatile potential outcomes are the claims that are the most likely, relative to baseline probabilities, to involve high-low discussions and/or result in a high-low agreement during litigation.
- Their model suggests that (1) when expected litigation costs are high, they should observe more settlement and fewer trials, including fewer high-low agreements, all else equal, and (2) when adjudication outcomes are sufficiently unpredictable (or the variance in the award or payout amount is high because its distribution has a larger spread), we should see litigants considering, discussing, and entering into high-low agreements more often.
- Combining these two predictions, the authors rank four categories of cases in terms of how likely they are to involve high-low discussions and agreements, from most likely to least likely: (1) cases with low expected litigation costs and high expected outcome variance (LC-HV), (2) cases with low expected litigation costs and low expected outcome variance (LC-LV) or with high expected litigation costs and high expected outcome variance (HC-HV), and finally (3) cases with high expected litigation costs and low expected outcome variance (HC-LV).
- These predictions were confirmed by the data.
- They report the relative difference in the likelihood that litigants engage in high-low discussions and agreements (versus adjudication with no such discussion) between the cases in the various groups.
- Moving from below-median variance to above-median variance when litigation costs are expected to be high (in other words, replacing HC-LV claims with HC-HV claims) increases the odds of a high-low discussion or agreement on average by more than 4 times
- The choice between a high-low agreement and full adjudication does not differ across claims if only the expected cost of litigation varies, unless high-low agreements offer some means of lowering costs. The point estimate for LC-LV claims hints at that possibility, and they explore the idea explicitly in Section 5 by modeling high-low agreements as commitment devices to restrain wasteful expenditures.
- As between adjudication with and without high-low activity, costs may be irrelevant. Still, one could hypothesize that the differences in the point estimates between the HC-HV and LC-HV claims imply some interaction between costs and volatility, with high litigation costs magnifying the role any difference in outcome volatility may play.
- Only the coefficients on LC-LV regularly approach statistical significance: LC-LV claims are only 75–85 percent as likely as HC-LV claims to settle (as opposed to going to trial or arbitration without the parties discussing the possibility of a high-low agreement), a result that is fully consistent with their model’s predictions
- So expense of trial does not contribute much to whether parties settle instead of going to trial with a high-low agreement). Rather, the key determinant of the use of high-low agreements as a vehicle in place of settlement is the volatility of the possible verdict.
According to the authors, their work “moves beyond the existing literature on settlement in civil litigation, which primarily focuses on only the extreme ends of the dispute resolution spectrum—cases that are fully settled or dropped and cases that proceed to full-blown trial. In reality, dispute resolution occurs on a continuum. [The possibility of entering into high-low agreements (as well as the possibility of pursuing arbitration and the possibilities of stipulating to certain facts or points of law while still allowing a judge or jury to decide other issues)] make plain that settlement behavior in litigation includes far more than simply out-of-court settlement.”
III. Conclusion
High-low agreements typically are enforceable, though, as this article has shown, they are often subject to a variety of constraints that typical contracts are not. Being mindful of these constraints—and the issues that they implicate—is of key importance for those who might consider entering into these agreements. Additionally, parties and attorneys should strongly consider high-low agreements as they weigh their options in their cases; there are many situations in which these agreements can be desirable. Further, for those who recognize the various benefits of jury trials, it is heartening to see that there is evidence that high-low agreements indeed encourage jury trials. Thus, to the extent that one wants to prevent the extinction of the jury trial, promoting the usage of high-low agreements might very well be a step in the right direction.
***
[1]
57 J. L. & Econ., 699-746 (2014).
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Michael Pressman
is a research fellow at the Civil Jury Project.
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SECOND THOUGHTS ABOUT HARDSHIP EXCUSES
By
Judge Arthur E. Gamble
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Civil justice requires jurors who are willing and able to render a fair verdict. Jurors must be able to sit for extended periods, to comprehend the evidence presented by the parties, and to follow the law per the judge’s instructions. In
voir dire
, lawyers seek impartial jurors who are able to serve in this critical function.
As judges, we often face citizens who are involuntarily responding to a summons to appear and who are unable to serve or are not particularly interested in serving. The unwillingness of potential jurors to serve may be particularly acute in long civil trials involving voluminous documents and video or audio depositions. The challenge is to select jurors who will find the trial an interesting and rewarding experience.
Potential jurors will sometimes ask to be excused from jury duty for hardship, either because they cannot serve for financial or medical reasons or because they simply do not want to serve. When ruling on a hardship excuse, a trial judge must consider myriad factors. The judge must consider the burden of jury service on a citizen who might not be in a position—mentally or physically—to handle it; she must balance the claimed hardship against fairness to other potential jurors who also shoulder a burden but are willing to serve; she needs a sufficient number of panelists to properly administer the trial.
At the same time, the judge must also avoid wasting time. Judges sometimes err on the side of keeping too many prospective jurors for fear of not having enough. This can yield undue hardship for jurors and waste taxpayer money.
This article explores jury-management techniques that will properly administer our jury system by reducing the hardship of jury service while fostering the selection of jurors who can render impartial justice. First, let me share a few stories illustrating the dilemma facing lawyers and judges in the real world of civil jury trials.
Many years ago, my partner and I represented a railroad in a wrongful-death action arising from an accident on a rural railroad crossing. A train struck a semi-trailer truck, tragically killing two young passengers. The entire community knew of the accident. Many knew the young victims’ family. The case came on for trial in the fall at the local county courthouse. The presiding judge was well known throughout the countryside. Most of the prospective jurors worked in agriculture.
After swearing in the panel, the judge introduced the case and asked if any panelist would find it difficult to serve. One brave soul raised his hand and told the judge that, since he was a farmer, it would be an extreme hardship to serve; it was harvest season and he needed to work the fields. The judge excused the juror. Suddenly, a majority of the panel had a hardship because it was harvest time. One by one, the judge excused potential jurors until we did not have enough left on the panel for peremptory challenges. It was a stampede! The judge sent the sheriff out to summon citizens off the town square to serve on the venire. Understandably, these folks were not excited about the prospect of jury service in an emotional double-death case, especially on such short notice. After many other fits and starts, we finally selected a jury and promptly settled the case.
When the governor appointed me to the bench a few years later, I vowed not to repeat the mistake of that venerable country judge. I developed an unsympathetic ear to the burdens of jury service and granted hardship excuses only in extreme cases, such as unexpected deaths in the family or medical emergencies. I viewed jury service as a responsibility of citizenship. Like other duties, jury service requires sacrifice. I would live to regret this harsh approach to jury selection.
I presided over the jury trial of a civil action brought by a prospective casino manager against the owners and operators of a casino for breach of an alleged management agreement.
[2]
This was a complex commercial case involving mountains of evidence and millions of dollars. We expected the trial to last at least two weeks.
As luck would have it, we drew a panel of potential jurors who wanted to be anywhere
but
this particular trial. They offered every excuse in the book. One juror said he could not afford to be on a jury for more than one week since he was a truck driver and his employer would not compensate him during jury duty. Seeking to hold the line against mass exodus, I applied my usual strict approach and denied his hardship excuse. I denied several others as well—hoping the lawyers would take care of the problem with preemptory challenges. However, there were not enough strikes to account for all of the claimed inconveniences. After a lengthy
voir dire
, we seated a jury. Unfortunately, our truck driver remained along with several other unhappy jurors.
After a few days of trial, we faced a full-fledged jury rebellion. Outside the presence of the jury, I disclosed to counsel that our truck driver had called to inform the clerk he was not coming to court. Instead, he was going to work. The clerk informed the juror, “You know, if you don’t come at nine o’clock, the judge is going to send the sheriff after you.” The juror responded, “Well the sheriff’s going to have a hard time finding me because I’m going to work in Peoria[, Illinois].” The clerk said, “He’ll send the highway patrol if he has to.” The juror showed up at nine o’clock. During morning recesses, the trucker began rabble-rousing, telling other jurors that he was not coming the next day. This caused speculation and concern among the jury. I informed the lawyers as follows:
"[F]ive out of the eight jurors asked, for one reason or another during
voir dire
, not to be on this case, and they still don’t want to be on this case, and some of the jurors who didn’t indicate that they had a problem don’t want to be here either."
I then told counsel that in fairness to other jurors, I would not excuse the truck driver but would enforce his jury summons by contempt, if necessary. Nevertheless, we needed to find a way to get the jury off the focus on their own discontent and to get them focused on this jury trial.
I decided a good old-fashioned lecture was necessary. As the jury filed in, I –seated in a black robe on the elevated bench and flanked by the American flag—used all the trappings of judicial power and implored the jury:
"[Y]esterday I mentioned … that your service on this jury and jury duty in general is one of the most important obligations of citizenship that we have in the United States and in the state of Iowa. And we have so many privileges guaranteed by the Constitution in this country and in this state, and one of the most prized liberties we have is the right to trial by jury, whether that’s in a criminal case or in a civil jury trial like this one . . . .
"We all have the right in this country to be judged by a jury of our peers. We don’t in this country allow people to volunteer for jury duty. We have a feeling in this system that volunteers who might want to be on jury duty may come with some hidden agenda or some special interest, may have some bias for or against a particular side in a case or whatever, and we don’t have volunteers for jury duty.
"Instead, we randomly summon individuals who are citizens of the state and . . . county to come and serve as jurors, and inevitably when that happens, we impose upon your schedules, we impose upon your lives, and we have to do that in order to get jurors who are ready, willing, and able to sit, listen to the evidence that is offered by the parties, follow the judge’s instructions, and arrive at a just verdict. That’s what a jury trial is all about.
"So through the summons, ultimately citizens are compelled to come to court and to serve on a jury duty. It’s not voluntary, and it’s inconvenient. We try the best we can to accommodate the pressing obligations of people who are called to jury duty. Sometimes we can’t, and sometimes we just have to go forward.
"But we recognize that jury duty is . . . an important sacrifice that’s necessary to preserve our liberties in this state. [I]f you think about it, . . . in other countries in the world, we have some citizens literally killing other citizens who want to have the rights and the liberties that we have that we take for granted in this country and we have armies of American soldiers in foreign lands fighting to try to help others have the kind of rights that we have here. . . . .
"Now, it’s been reported to me that at least one of you has repeatedly indicated that you’re not going to come to court to be a juror on this case and that that has been fueling some speculation among this jury as to what would happen if one or more of you do not appear for jury duty. Would there be a mistrial? What would the judge do? What would happen? . . . .
"Certainly, your summons is a court order that will be enforced. . . . .
". . . We don’t need to do that. . . .
". . . [W]e know that some of you have other things on your mind, but we’ve got to get past that. It’s time to, as I indicated a couple times yesterday, reach accommodations with all of the other things that are going on in your lives and in all of our lives. We’ll do what we can to help you with that, but the bottom line is this is a case that demands your immediate attention, and we can’t be having the distractions of what would happen if this happened and what would happen if that happened. It’s time to get past all of that.
"This is the trial. We’re going to try this case, and we’re going to get to a just result in this case with your assistance. So it’s not that we don’t understand the inconveniences and the sacrifices we’re imposing upon you, and it’s not that we don’t want to try to assist you the best we can, but the bottom line is you’ve been summoned to serve on this jury. You’re going to be here, and so we need to try to make it as comfortable as we can....
"If we can do anything to help you with your scheduling conflicts or make explanations to employers or schools or whatever you need, we’ll do that . . . ."
O
bviously, this was less than ideal jury administration. No lawyer or judge wants a disturbance like this in the middle of a jury trial. Nevertheless, my Hail-Mary speech had its desired effect. The jury settled in. We tried the case to a $10,000,000 verdict.
Was the lecture necessary? I have since concluded there is a better way to manage juries to prevent calamities like this. The key is to find the sweet spot between the extremes of excessive liberality with regard to excuses (sometimes to the point of not having enough jurors for trial) versus being so strict that jurors rebel against the court.
With the National Center for State Courts’ help, several jurisdictions are developing standards to help judges navigate hardship excuses. For example, the Iowa Supreme Court Committee on Jury Selection recommends that “[a] liberal deferral policy should be employed to reduce the number of outright excusals. Potential jurors should be able to reschedule their service once without any questions asked.”
[3]
The American Bar Association suggests deferrals of jury service to a date certain within six months should be permitted by a judge or duly authorized court official. Prospective jurors seeking to postpone their jury service to a specific date should be permitted to submit their request by telephone, mail, in person or electronically. Deferrals should be preferred to excusals wherever possible.
[4]
The Michigan courts adopted a best practice preferring deferrals of jury service to excusals, noting: “For example, someone undergoing a medical procedure may be willing and able to serve in a subsequent term instead of being dismissed from their duties entirely.”
[5]
Allowing potential jurors the opportunity to postpone jury service to a more convenient date encourages jury service by a larger cross-section of the community and reduces friction caused by a summons to appear involuntarily.
Courts should consider the hardship experienced by prospective jurors based on objective standards. In 2011, as Chief Judge, I provided guidelines to local jury managers within the Fifth Judicial District of Iowa for when a potential juror may be excused or deferred.
[6]
The guidelines permitted a potential juror be excused for the following reasons:
- Medical conditions when service would cause substantial risk of injury to the health of the person, as documented by a physician;
- Elderly persons over the age of 75 who claim an inability to serve;
- Sole responsibility for the daily care of a person with a permanent disability living in the prospective juror's household and performance as a juror would cause substantial risk of injury to the health of the person with the disability as supported by satisfactory documentation, and the prospective juror is not otherwise employed outside the home;
- Mother of a breastfeeding child responsible for the daily care of that child and not otherwise employed outside the home; or
- On active military duty.
The guidelines permitted a potential juror be deferred for the following reasons:
- Job concerns (to provide the potential juror with time to make necessary arrangements);
- Financial (to give the potential juror time to make necessary arrangements);
- Students and teachers (generally deferred to the summer months or when school is not in session, if possible)
- Vacation plans;
- Mother of a breastfeeding child who would like to serve as a juror but is requesting a deferral to a time better suited to the child and her physical needs; and
- Parent not otherwise employed outside the home who has primary responsibility for the care of minor children during the day (to give the potential juror time to make necessary arrangements).
In 2018, The Iowa Supreme Court Committee on Jury Selection recommended, “The office of the State Court Administrator . . . should publish clear and objective criteria on how jurors may demonstrate financial or medical hardship and guidelines for rescheduling service more than once.”
[9]
Many courts around the country have done just that.
[10]
For example, the Arizona Judicial Branch provides a comprehensive roadmap for prospective jurors helping them understand the grounds judges and court officials consider when ruling on hardship excuses.
[11]
The plight of farmers summoned during harvest, the resistance to service by uncompensated workers, and other financial and medical hardships can be mitigated through thoughtful jury management practices. By employing liberal deferral practices and transparent benchmarks for hardship excuses, courts can encourage juror participation in the justice system allowing litigants to be heard by a fair cross-section of their peers. Lawyers will appear before juries who have had input in scheduling their jury service and who are ready, willing and able to arrive at a fair and impartial verdict. Jurors will come away from the process with a sense of pride in their participation in the judicial branch of government.
***
[1]
Arthur E. Gamble retired after thirty-five years as a Judge of the Fifth Judicial District of Iowa including twenty-three years as Chief Judge. He currently serves as a Senior Judge of the Iowa Court of Appeals. Judge Gamble is a judicial advisor to the Civil Jury Project at the NYU School of Law. He is the Judge in Residence at the Drake University Law School in Des Moines.
[2]
Pavone v. Kirke
, 801 N.W.2d 477 (Iowa 2011).
[6]
Memorandum from Arthur E. Gamble on Jury Management—Updated Criteria for Excusing & Deferring Jurors by Clerks of Court/Jury Managers in the 5
th
District (Feb. 22, 2011) (on file with author).
[9]
Iowa Supreme Court Committee on Jury Selection,
supra
note 4, at 8.
[10]
See, e.g
., King County,
Information for Jurors
,
https://www.kingcounty.gov/courts/superior-court/juror-information.aspx
(last visited Ja. 21, 2020); Virginia’s Judicial System,
The Answer Book For Jury
Service 1,
http://www.courts.state.va.us/courts/circuit/jury.pdf
; State of Main Judicial Branch,
Exemptions, Excuses, and Deferrals
,
available at
https://www.courts.maine.gov/maine_courts/superior/jury/exemptions.html
(last visited Jan. 21, 2020); Superior Court of California,
Deferrals/Excusals
,
available at
https://www.sb-court.org/jury-information/deferrals-excusals
(last visited Jan. 21, 2020).
[11]
Arizona Judicial Branch,
Jury Service—What to Expect
,
available at
https://www.azcourts.gov/juryduty/Jury-Service-What-to-Expect
(last visited Jan. 21, 2020) (“
Requests to be excused are infrequently granted. In particular, excuses are not granted on the basis of religious beliefs, moral beliefs, status as business proprietor, professional status as doctor or lawyer, etc. Excuses are granted on the basis that you do not understand English or because jury service would cause you to incur costs that would have a substantial adverse impact on … your necessary daily living expenses or on those for whom you provide regular care. A request to be excused must be made in writing to the court that issued the summons and must be supported by appropriate documentation. Requests for excuse should be directed to the Jury Commissioner’s Office. Possible grounds for excuse include:
- the person has a mental or physical condition that causes them to be incapable of performing jury service
- jury service would substantially and materially affect the public interest, adversely
- the person does not understand English
- jury service would require the person to abandon someone under their care, because it is impossible for them to obtain substitute care
- jury service would cause the person to incur costs that would have a substantial adverse impact on the payment of their necessary daily living expenses or on those for whom they provide regular employment support
- jury service would result in illness or disease
- the person is a certified peace officer employed by the state
- jury service would cause undue or extreme hardship
- the person has served as a juror in this state within the last two years
- the person is at least 75 years of age (Documentation in support of the excuse is generally required)
- the person has served on a grand jury in an Arizona state court within the last four years. (Does not apply to alternate grand jurors).”).
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What Jurors Say
Over the course of the past months, the Civil Jury Project has provided recently discharged jurors across the country with a questionnaire about their experiences serving in trials.
Jurors received the questionnaire in one of two ways: (1) Many judges agreed to distribute our questionnaire in person to jurors at the conclusion of their trials. These judges then sent the completed questionnaires to us. (2) We also have the questionnaire on one of our two websites, WeThePeopleWeTheJury.com. Many judges agreed to direct recently discharged jurors to the website, and the questionnaire also can be found by others carrying out simple internet searches. In sum, we have received over 800 questionnaire responses. These were filled out by jurors who served in cases all across the spectrum: state and federal, civil and criminal, short and long, straightforward and complex, and in cities and states all across the country.
As for what types of questions were included in the questionnaires, they addressed a wide variety of aspects of a juror’s experience from start to finish. Some of these questions were fairly specific. For example, among the questions jurors were asked were the following: whether they were told how long the trial would last, and, if so, whether this estimate turned out to be accurate; whether they were provided sufficient instructions and guidance at the outset of the trial to understand what would be required of them throughout; what they thought about the judge’s and lawyers’ management of the case; whether the verdict was affected by potential discrepancies between the lawyers’ skill and preparation; and how technology in the courtroom could have been improved. The jurors were also asked a number of broader and more wide-ranging questions about their experience. For example, jurors were asked how they felt when they received the summons; what their favorite and least favorite aspects of jury service were, and whether, and if so how, their perspective of the judicial system changed after service. Further, there was variety in the structure of the questions; some were yes or no questions, some had a handful of possible answers, and some were completely open-ended.
Starting with this issue of the newsletter, and continuing with future issues, we will post selections of the notable responses and comments we receive in these questionnaires. What follows are the testimonials for this issue.
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- "My favorite part of the experience was how much I was respected, by the court, for being a jury member.”
- “Not only did going through the process give me a new respect for the judicial process, but it taught me how to see facts without bringing in my personal bias."
- “My favorite part of jury service was being able to talk to the judge and the attorneys after the trial.”
- “My least favorite part was that I couldn’t discuss the case with fellow jurors, to make sense of the day to day testimony while fresh in my mind, until after closing arguments and deliberation began."
- “My favorite part of trial was deliberation among 12 people with 12 different perspectives and still coming to a single resolution. The process restored my confidence in how the system works.”
For more testimonials, including video interviews, click
here
.
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Look out for the March Newsletter!
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Tune in next month for more articles by our judicial and academic advisors and testimonials from jurors who have recently finished serving on a civil jury.
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Civil Jury Project, NYU School of Law
Wilf Hall, 139 MacDougal Street, Room 407, New York, NY 10012
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Stephen Susman
Executive Director
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Michael Pressman
Research Fellow
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Samuel Issacharoff
Faculty Director
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Michael Elias Shammas
Research Fellow
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Mark Drummond
Judicial Director
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Kaitlin Villanueva
Admin. Assistant
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