Citizen juries: power of the people.
As America's lawyers, we are well aware that we are not the issue. But when the war cry of the insurance industry and its powerful allies becomes "kill all the lawyers," our democracy itself is in real trouble.
The ultimate objective of the insurance industry's campaign is the elimination of the bulwark of our democracy: citizen juries in civil cases. Don't think it can't happen here. Indeed, one newly elected member of Congress boldly told me that "plumbers are not fit to sit as jurors." Remember, the United States is the last country in the world to retain a civil jury system.
Many Americans, apparently frustrated by the atypical proceedings in the O.J. Simpson murder case, believe that we would be better off if we got rid of juries and relied instead on panels of expert judges to decide all cases.
These citizens fail to realize the extent to which, we already rely on expert judges and that the jury--which empowers citizens in a democracy to speak out--is vital to a government of, by, and for the people.
It is sadly ironic that the very Americans who feel so isolated from their government and politics in general are apparently willing to throw away a time-honored civic instrument that gives power to their voices and meaning to participatory democracy.
The French political scientist Alexis de Tocqueville observed more than 150 years ago that the American jury "invests each citizen with a kind of magistracy; it makes them feel the duties which they are bound to discharge towards society; and the part which they take in their government."
It is up to us, as America's lawyers, to reach out to people in our communities and educate our families, clients, and friends as to how well our civil jury system works. We need to distinguish criminal justice from civil justice, because Americans typically do not.
We must explain that every state in this country has at least one expert panel of judges known as an appellate court, which scrutinizes criminal and civil trials for fairness. We must explain that trial and appellate judges are essential to our legal system, which is imbued with checks and balances from the beginning of a case until a decision on final appeal.
But while learned in the law, trial and appellate judges do not possess the special insight into human nature that jurors use to derive the truth. Rather, judges recognize that their expertise is the law, and they rarely second-guess a jury on an issue of fact'
Since the American Revolution, we have called on citizen jurors to determine witness credibility and the behavior a community will accept or reject. Indeed, the Declaration of Independence cites the deprivation of trial by jury as one of the principal causes of the Revolution.
By virtue of our professional experience, we are in a unique position to appreciate what so many of our people do not: the collective wisdom of 6 or 12 impartial citizens who serve as the conscience of the community. The jury invests our legal system with a legitimacy and incorruptibility that has stood unbowed for more than 200 years. Juries have reined in excessive government, given voice to the weak and vulnerable, and forced the reckless to take responsibility for their acts.
Recently, during a focus group discussion, one gentleman, who was a strong and vocal advocate for placing federal limitations on the legal rights of citizens, declared that the Bhopal disaster could never happen here. When asked why not, his mouth suddenly dropped open, he hesitated, and then he conceded, "because Union Carbide knows that if they did that kind of outrageous stuff here, they'd get sued for a lot of money." Through discussion and education came appreciation for our unique system of justice.
Look at your children and think about whether you want them to live in an America where there are no citizen juries in civil cases. Think about an America where everyday people will be denied access to full and complete justice because they won't be able to hire skilled lawyers to represent them under a contingent fee arrangement. Think about an America where we don't have a civil justice system that ensures we live in the safest society in the world.
What we do here and now, as America's lawyers, will very much determine whether our civil justice system lives on into the 21st century. We can't escape history, and we can't sit idly by It's time to speak out.
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|Author:||Liapakis, Pamela Anagnos|
|Article Type:||President's Page|
|Date:||Oct 1, 1995|
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