Federal judges consider return to mandatory 12-member juries.

Members of the U.S. Judicial Conference, the policy-making body of the federal courts, will vote this month on a proposed rule that would require a return to 12-member juries in federal civil cases.

A proposed amendment to Rule 48 of the Federal Rules of Civil Procedure, passed by a conference committee, would require judges to seat a 12-member jury unless the parties agree to a smaller panel. The amendment would continue to require a unanimous verdict, and local courts would not have the option of doing away with the unanimity requirement or using smaller juries.

The current Rule 48 allows judges to scat panels with at least six members. Several courts now routinely appoint eight member civil juries.

Based on comments received after publication of the proposed amendment, sources on the conference staff do not believe the proposal will pass. (John Plynn Rooney, Chi. Daily L. BuII., June 21, 1996, at 1.) But, an articulate minority continues to advocate the change.

"The rulings that the Seventh Amendment permits six-member juries . . . do not speak to the question whether six-member juries are desirable," proponents wrote in a committee statement. "Much has been learned since 1973 [when the Supreme Court upheld local six-person jury rules] about the advantages of 12-member juries.

"[They] substantially increase the representative quality of most juries, greatly improving the probability that most juries will include members of minority groups.... Members of a 12-person jury are less easily dominated by an aggressive juror, better able to recall the evidence, more likely to rise above the biases and prejudices of individual members, and enriched by a broader base of community experience."

Testing for the Economy Subcommittee of the Judicial Conference's Budget Committee, Judge John Roper estimated that the cost of returning to 12-person juries "could go as high as $12 million." Judge James Rosenbaum, chair of the Court Design Guide Subcommittee, noted that current design standards anticipate six-member or eight-member juries for magistrate judges. "The square foot costs of court construction range from $150 to $250 [and] there are 50 court facilities in various stages of design and construction. All would be affected by the proposed amendment."

In opposition, Robert Sheldon, then-president of the Connecticut Trial Lawyers Association, wrote that 12-member juries may lead to compromise verdicts because of the difficulty of securing unanimity. He also said that the proposal "contains a strong bias against the party carrying the burden of proof--which means that the proposal would work against plaintiffs in civil cases."

In a written comment on behalf of ATLA, then-President Pamela Anagnos Liapakis said that "where there is a requirement of unanimity, 12-member juries tend to be cumbersome mechanisms which are more likely to be sidetracked by a sing,e intransigent or biased juror."

Liapakis noted that there is no compeling reason to have a uniform national practice. She suggested instead a rule that would "make the jury size the same whether a litigant is in state or federal court in any given jurisdiction"--essentially conforming federal rules to state jury practice.

If the Judicial Conference accepts the proposed amendment, it must be approved by the U.S. Supreme Court and the Congress. Should the rule receive final approval, staff sources estimate that it would become effective December 1, 1997.