Introduction to Trial

The Institution of Trial by Jury

The institution of jury trial has ancient roots, but the American jury developed from its English predecessors in the post-Revolutionary colonies. The Seventh Amendment of the U.S. Constitution states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

U.S. Const. amend. VII.

It was ratified in 1791 (a date that will become important as we learn about the case law as to when you have a right to a jury trial).

Interestingly, despite this strong language, the ability to dictate what the law actually said was quickly taken back from the jury. As judge-made common law developed, all juries, but particularly civil juries, quickly lost the power to decide legal issues to avoid aberrant results. The fear was that juries would simply ignore the law, such as it was, and make decisions ungrounded in any legal thought. The criminal jury similarly lost most of its power to decide legal questions. As the U.S. Supreme Court explained in Sparf v. United States:

Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. . . . [T]he result would be that the enforcement of the law against criminals, and the protection of citizens against unjust and groundless prosecutions, would depend entirely upon juries uncontrolled by any settled, fixed, legal principles.

151 U.S. 51, 101-02 (1895)

But what about the jury as fact-finder? Its strongest defenders speak about the importance of representing the community, the idea of being judged by a jury of one’s peers. Judges and their appointment processes have many virtues, but they may be lacking in mirroring the views of the communities involved. While these themes reach their apotheosis for the criminal jury, who are literally representing the community’s judgment with all the effects on liberty it entails, the same notions animate defenders of the civil jury system.

Nevertheless, unlike its use in criminal law, the use of a jury in civil matters at all remains a hotly contested issue. Many countries, including the United Kingdom, have done away with the practice altogether. One of the most outspoken critics of civil jury trial was Judge Jerome Frank, who has observed that jurors:

[a]re hopelessly incompetent as fact-finders. It is possible, by training, to improve the ability of our judges to pass upon facts more objectively. But no one can be fatuous enough to believe that the entire community can be so educated that a crowd of twelve men chosen at random can do, even moderately well, what painstaking judges now find it difficult to do . . . [t]he jury makes the orderly administration of justice virtually impossible.

Jerome N. Frank, Law and the Modern Mind 180-81 (1949).

Chief Justice Warren Burger (who served on the Supreme Court from 1969 to 1986) summarized the case against using a jury in civil cases succinctly:

First do we really have truly representative juries? Experienced business executives, bankers, professional people, accountants, professors of economics, statisticians, teachers, and others are arguably more competent than most to cope with complex economic or scientific questions rarely survive to sit in the box. Peremptory challenges in the jury selection process eliminate them and more often they are excused for cause, including the cause that they are too busy! We must stop deluding ourselves. The jury is actually selected in most protracted cases are rarely true cross-sections, as we are so fond of repeating.

[. . .]

Second, the factual issues in protracted cases are often of enormous complexity. The analysis of documents, of expert testimony, of charts, graphs and other visual aids, and the comprehension of such evidence, present problems which often only a sophisticated business executive, an economist, or another expert could grasp; some cases would baffle even them.

Third, the legal issues, which must be explained to jurors by the trial judge, may take not hours, but a whole day or several days, by way of instructions.

Fourth, there is a limit to the capacity of any of us—jurors or judges—to understand and remember the mass of complicated transactions, documents, and legal principles usually described in the course of a long trial.

Fifth, quite apart from these considerations, there is an enormous—an inordinate—impact on the life of each of the twelve jurors, and alternate jurors, thrust for months into a totally strange environment, and then confronted with the burden of decisions in areas in which few, if any of them, have any experience.

Warren E. Burger, Chief Justice of the United States, Thinking the Unthinkable, Remarks for the First Robert A. Ainsworth, Jr. Memorial Lecture (November 10, 1984), in 31 Loyola L. Rev. 205, 210-11 (1985).

While the civil jury trial remains available in the U.S., procedural devices like summary judgment and judgment as a matter of law as well as settlement have curtailed its actual use. In 2002 only 1.8% of all civil cases make it to trial. In 2002 there were five times as many federal civil cases filed as in 1962, but fewer trials in absolute numbers (4,569 in 2002 compared with 5,802 in 1962). In the debates we will consider (about the uses of these other procedural devices and also about how to allocate power between judges and juries more generally) you will see echoes of exactly this debate about whether to have a civil jury trial at all.

Tactical Considerations in Deciding Between Trial by Judge or Jury

The constitutional right to have a jury hear a case may be waived by the parties if they feel it would be better that a judge determines the outcome (in a “bench trial”). Bearing in mind the limitations discussed above, several considerations might lead a litigant to make such a decision:

a) Institutional. For example, a non-jury trial usually means a significantly faster outcome. This speed might be disadvantageous (say, it might not allow time for new evidence to potentially come to light); or advantageous (it would be significantly less expensive and time-consuming).

b) Psychological. A jury in a highly complex case is a fickle thing – it could easily come out either way if the result turns on some finer technicalities. A judge provides greater certainty of thinking and outcome. However, sometimes certain aspects of a case can speak to a jury’s sensibilities such that a plaintiff can mend a defect in those technicalities a judge would notice.

c) Winning. Generally (and even more than many generalizations this one hides lots of variations), plaintiffs do better with judges. However, if the case is weaker, or has some technical limitations, juries can be more amenable to a compelling narrative.

d) Damages. Generally (again, we need to be careful about generalities), juries award higher damages. Some venues have juries who are famous for their awards. That said, depending on the characteristics of the parties and the judge in question, there might be good reasons to prefer one method over the other.

e) Cost. As above, it is certainly more costly to go to a jury trial. This could, for example, create an incentive for a more resource-rich litigant to attempt to outspend their opponent. This burden could be used to try to push the opposing side towards settlement, since the American Rule is that each side pays its own attorney’s fees (subject to some exceptions).

The Scope and Order of Trial

1. Setting the Case for Trial

If the parties elect to go to trial, the trial judge will generally set a date for the trial to begin (FRCP 16(b)(3)(B) and (c)(2)(G)). This allows parties to work backward to plan their case strategy and gather the appropriate evidence and witnesses to appear on that date.

2. Order of Jury Trials

Once begun, there is a set order of presentation of evidence which the court will enforce. These will vary somewhat in bench trials (judges will often elect to forego the opening statements, for example), and the parties can sometimes agree with the judge’s permission to alter things, but the ordering is generally as follows:

1. Plaintiffs opening statement
2. Defendant’s opening statement
3. Plaintiff’s presentation of direct evidence
4. Defendant’s presentation of direct evidence
5. Plaintiff’s presentation of rebuttal evidence
6. Defendant’s presentation of rebuttal evidence
7. Opening final argument by plaintiff
8. Defendant’s final argument
9. Closing final argument by plaintiff
10. Court’s instructions to the jury.

3. The Burden of Proof

The burden of proof is divided into two categories: the burden of persuasion and the burden of production. The burden of persuasion is defined as:

A party’s duty to convince the fact-finder to view the facts in a way that favors that party. In civil cases, the plaintiff’s burden is usually “by a preponderance of the evidence,” while in criminal cases the prosecution’s burden is “beyond a reasonable doubt.”

The burden of production, on the other hand, is:

A party’s duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict.

Black’s Law Dictionary (11th ed. 2019)

The burdens of production and persuasion usually fall on the same party at trial, but there are times when the burden of production is placed on one party and the burden of persuasion on the other. In these cases, once the burden of production is satisfied, the burden of persuasion “shifts” to the other party. For example, in civil rights cases, a plaintiff must make a prima facie showing of intentional discrimination to survive summary judgment. If they do so, the burden of production shifts to the defendant to demonstrate a legitimate basis for the action while leaving the plaintiff with the burden of persuasion.

4. The Presentation of Evidence

As noted previously, the rules and laws that govern evidence are among the most complex you will study at law school (there is a separate course, Evidence, on the very subject). Attorneys at trial have to keep those rules in mind to ensure that they make their case on the evidence that they are sure can be admissible. Occasionally, lawyers have been known to offer evidence that bears a slight risk of being inadmissible, hoping that it will not be challenged (it is an adversarial system, after all). Still, it is a strategy that brings with it a whole host of risks and potential consequences. If an objection is raised in front of a jury, who benefits from that moment?

Presenting evidence to the judge or jury is often considered the heart of trial advocacy. Attorneys make substantial choices as to the order and rhythm of their evidence, all in hopes of convincing the fact-finder of the strength of their case. Though the dramatic movie moments of “witness stand confessions” are almost unheard of, there can be twists and turns. Cross-examination can be an intimidating prospect for witnesses, and when surprises in testimony do happen, attorneys will need to be light on their feet to adapt quickly to them.

There has been some debate over the years as to how much or little the judge and jury should be involved in the presentation of evidence. Should they be allowed to ask questions of witnesses? Should judges prompt parties to produce more evidence? At the moment, judges are generally empowered to use their discretion to decide such issues within certain limitations, but it is a developing part of the practice.

5. The Closing Arguments

The closing arguments provide litigants with an opportunity to tie all the loose ends of a case together. For a plaintiff, this might be where they have their last chance to fully state their case, bringing together the facts, law, and theory to make for a compelling finding by the judge or jury. For a defendant, this might be the chance to use the facts introduced to poke holes in that theory or offer a competing one.

Generally, whichever party bears the burden of proof will have the opportunity to speak first, followed by the other party, and then rebuttal for the first. In theory, parties may only make “proper” arguments, which follow logically from the evidence as introduced. In reality, attorneys have significant leeway in the kinds of arguments allowed here. Judges can and will cut an attorney off in some circumstances, but they are generally of a kind where there is a simple bright-line rule to follow, rather than one relying on discretion. Some judges will also occasionally inform attorneys as to “off-limits” topics in their closing arguments to avoid having to interrupt them in front of the jury.