ABA proposes changes to jury system; plaintiff lawyers voice concerns.

A panel of the American Bar Association (ABA) has proposed 19 "principles" that could signal changes in the way jurors are treated in civil and criminal trials and how such trials are conducted. The organization's House of Delegates was scheduled to vote on the principles in February; if adopted, the ABA would recommend that they be implemented by jurisdictions across the country.

One proposal calls for increased privacy for jurors, including keeping juror addresses and phone numbers confidential, allowing jurors to answer sensitive questions privately, and making sure jurors' faces are not photographed in the courtroom. The principles also call for reasonable juror fees; 12-member juries whenever possible; unanimous verdicts; allowing jurors to take notes; and allowing civil trial jurors to discuss the case among themselves, reserving judgment until deliberation, and to submit written questions to the court.

At a news conference in December, ABA president Robert Grey cited a need to address juror privacy concerns.

Under the principles, "parties and their agents would not be allowed to conduct surveillance of jurors--or prospective jurors--without express court permission, and cameras allowed into the courtroom could not record or transmit images of jurors' faces," he said. "And at the end of trial, the judge should tell the jurors that they have the right to talk to anyone about the case--and the right to refuse to talk to anyone, including the lawyers and the press, and that they may ask [for] the court's help if anyone persists in questioning them about their service over their objection."

But some trial lawyers worry that at least a few of the proposed rules could prove vexing for plaintiffs.

For instance, requiring unanimous jury verdicts in civil cases is problematic "because the potential for disagreement on the jury is large, especially in civil cases, and to make more stringent the ability to recover in civil cases makes no sense," said Sharon Arkin, president of Consumer Attorneys of California.

"It's not a criminal proceeding, where you're dealing with life and liberty. In a civil proceeding, you're dealing with money," Arkin said. "You're changing the standard of proof in one respect: You're saying that unless you have such compelling evidence that nobody could disagree, you're not going to be able to recover for the wrong. You're really putting a much larger burden of proof on plaintiffs in that context."

Robert Peck, president of the Center for Constitutional Litigation, said only 19 states and the District of Columbia require unanimous verdicts in civil cases. In California, where the constitution allows a civil jury verdict to be three-quarters of a 12-member jury, "any legislative attempt to deviate from that standard would be patently unconstitutional," Peck said.

Arkin also expressed concern that although the principles call for ensuring that a criminal defendant's waiver of the right to jury trial is "knowing and voluntary," they do not specify the same for civil parties.

"[Mandatory] arbitration is such a horrible thing to befall civil plaintiffs in consumer-type transactions," she said.

"Even though criminal defendants face possible prison and death penalties, in terms of HMO, insurance, health care, and medical malpractice claims subject to arbitration, plaintiffs sometimes die. Yet their claims have to be submitted to arbitration even if [their agreement to] the arbitration provision is not 'knowing and voluntary.' To me, it is patently unfair and irresponsible to so carefully protect criminal defendants and not civil parties."

Allowing jurors to submit written questions to the trial judge also could be troublesome, she said. "There are often issues that the jury wants to hear about that have been precluded because of evidentiary rulings. So, to me it's very tricky to help jurors understand that there may be questions that cannot be answered."

According to the ABA's public statements, the proposals are part of a larger effort by the organization to promote understanding of the jury system in American law and government. That effort includes two groups: the American Jury Project, whose goal is to review and update the ABA's standards on juries-including jury selection, conducting a jury trial, and treatment of jurors--and the Commission on the American Jury, charged with educating the public on the importance of jury service.