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The Civil Jury in the United States: A Brief History and an Overview of the Legal Constraints on its Operation

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I - HISTORICAL BACKGROUND

The use of the jury in civil trials in Anglo-American law dates back to at least the twelfth century.¹ For hundreds of years, the jury was a prominent institution of the common law tradition. However, its use in England was greatly curtailed by the reform of English law in the nineteenth century and it had essentially disappeared by the middle of this century. By contrast, the existence of the civil jury was never seriously challenged in the United States, where juries are still widely used in civil trials.

The jury has deep historical significance for Americans. At the time of the American Revolution, the jury was seen as an important means of negating the power of the English sovereign.² Many states abolished formal proceedings in equity, which were associated with the monarchy, and enshrined the right to a jury trial in their constitutions.³ In federal courts, the right to a jury trial in civil damages cases was guaranteed by the Seventh Amendment to the US Constitution.⁴

The civil jury continued to thrive well after the period of the Revolution. Distrust of authority -- of judges and elected officials -- continued to be a prominent feature of American political thought and reinforced the importance of the jury in judicial proceedings. Juries were entrusted with the authority to determine not only the facts in a case, but to decide the applicable law as well.⁵ In addition, a legal profession developed around the institution and was strongly influenced by the staunch support for juries expressed in William Blackstone's "Commentaries", a book published in 1775 in England, which had a more profound and enduring influence in the United States than in England.

By the mid to late 19th century, the role of the civil jury was coming under increasing scrutiny. The growing professionalism of the American bar and judiciary and the influence of philosophies stressing rationalism and scientific thought raised doubts about the ability of juries to carry out their functions. As a result, a more clearly defined division arose between the jury as fact-finder and the judge as interpreter of the law. In addition, there was an increase in the use of procedures meant to control juries.⁶

Despite continued criticism of the civil jury, it remains an institution in the United States. It has strong roots in the constitutional frameworks of the federal government and of the states. Additionally -- and perhaps more importantly -- it has become a fixture in the American concept of a democratic and free society.

II -- RESTRAINTS ON THE CIVIL JURY

A. Summary

Despite the appearance created by reports of large damage awards given by juries in civil cases in the United States, the civil jury is not a 12-person mob rampaging through the American judicial system. Rather, the jury is tightly integrated into the judicial system and operates in a strictly regulated environment. This system combines rules that regulate the jury's behavior and the authority of courts to review verdicts handed down by the jury.

Rules and procedures intended to limit the jury's discretion operate throughout a legal proceeding.⁷ From the moment a jury is seated in the courtroom, these rules and procedures work to control its actions. The lawyers for each side make introductory arguments and then present evidence to support their positions. However, the type of evidence heard by the jury is limited by complicated rules regulating the admissibility of evidence in civil trials. Juries are informed that arguments of counsel are not evidence, and that only the testimony of witnesses, plus documentary and other non-oral evidence, may be the basis for findings of fact.

At any point during or following the presentation of evidence, the court may decide that the case can be decided as a matter of law. This allows a court to avoid a jury verdict altogether by issuing a summary judgment or a "judgment as a matter of law". This represents the most extreme form of jury "control".

Even where the jury is asked to make a determination, however, the court can influence its decisions. Following the presentation of evidence and the closing arguments, the jury must determine the facts in the case (decide what actually happened) and apply the relevant legal standards to reach a verdict. However, before the jury begins its deliberations, the court informs the jury of the relevant legal standards and instructs them in how to apply their factual findings to the law to come to the verdict. Through these instructions, the judge guides the jury in its deliberations.

In the classic situation, the jury returns a "general verdict" -- a finding for one of the parties and, if they find for the plaintiff (the complaining party), a statement of the amount of the award -- which gives no indication of how the jury reached its decision. However, federal courts and courts in a number of states can instruct the jury to return a general verdict accompanied by answers to interrogatories, or to return a "special verdict" in which the jury simply answers specific questions of fact and does not apply the law. Both of these alternatives can give the judge greater influence over the verdict.

A further opportunity to regulate jury conduct comes after a jury has reached its verdict. The verdict is subject to two basic forms of judicial review. The first type of review occurs in the trial court itself, where in certain circumstances the judge may set aside the verdict and either issue a judgment for the other party or order a new trial. The second type of review is appellate review by a panel of judges.

B. Specific rules and procedures which control jury conduct

1 -- Rules of evidence

The admissibility of evidence in a trial in the United States is governed by complex rules. The purpose of these rules is to ensure that verdicts are based only on evidence which is relevant, and which is not unduly and unfairly prejudicial to either party. In large part, these rules exist because juries exist. We trust that a judge who hears non-relevant and prejudicial evidence is able to disregard that information and make a decision based only on relevant, non-prejudicial evidence. This can be seen by the fact that the presiding judge is responsible for determining what evidence should be admitted, even when that judge is presiding over a non-jury trial. This means that the judge will hear evidence that may not be admissible in court. In contrast, the system considers jurors to be less capable. Thus, questions of admissibility are argued outside the presence of the jury so that the jury is not tempted by this forbidden evidence.

The effort to control the jury's sources of information is not limited to evidentiary rules. Jurors are routinely admonished to refrain from reading or listening to news related to the case they are deciding. Moreover, in cases which generate overwhelming public attention, jurors can be sequestered to shield them from information that would not be admissible in court.⁸

2 -- Summary judgments and judgments as a matter of law

Generally, the jury's function in a civil trial is to decide issues of fact on the basis of the evidence presented; questions of law are decided by the judge.⁹ Thus, if a case presents a question of law and there is "no genuine issue as to any material fact",¹⁰ the judge may rule in favor of one the parties, bypassing the jury altogether. This can occur when there is no actual dispute about the facts (i.e. the parties agree on the facts in the case, but disagree as to the law). It can also occur when there is a dispute about the facts, but the disagreement is immaterial (i.e. no matter which party's version of the facts is accepted, the law favors one of the parties).

There are two mechanisms for bypassing the jury in such cases: the summary judgment¹¹ and the judgment as a matter of law.¹² A summary judgment is issued in response to a motion made by either party before the trial begins. A judgment as a matter of law occurs after some or all of the evidence has been presented, again in response to a motion by one of the parties. Under both procedures, the judge issues the judgment without assistance from the jury.

3 -- Instructions

Generally, after all the evidence is presented and both sides have made their closing statements the case goes to the jury, which will issue a general verdict. A jury must consider three elements in arriving at a verdict: the facts, the law, and the application of the facts to the law. It is the jury that determines what the facts are and the jury that determines how to apply the facts to the law.¹³ However, juries are not expected to know what the law is, and so after arguments are completed and before the jury recesses to begin deliberation, the judge instructs (or "charges") the jury.

The procedure for instructing the jury varies among states and between states and federal courts, and has changed over time. In common law tradition, a judge would go over each issue raised in the case and explain the law applicable to each issue, whether or not either party requested such instructions. In doing so, the judge would generally summarize the evidence relevant to each charge and indicate how the law should be applied to the possible factual findings. In summarizing the evidence, a judge would be permitted to comment on the evidence and to discuss the relative weight of the evidence, as long as it was clear that the ultimate decision on the evidence was left to the jury.¹⁵ This traditional approach is still used in federal courts and in a small number of states.

In most state courts, however, judges are not permitted to comment on the evidence.¹⁶ In the nineteenth century, a number of states passed laws to restrict the judge's discretion in instructing the jury. There were three basic types of limitations. The first type gave much of the discretion to the parties in the case, by permitting them to request instructions on particular charges. The judge could grant or deny the request, but could not give instructions that were not requested by the parties. A second type of limitation required the instructions to be given before closing arguments were made. The third type of limitation forbade a judge from commenting on the evidence in the case. Some combination of these restrictions still applies in the courts of most states.

Despite the significant variance in procedure, it is possible to identify a standard content in the judge's instructions. The judge will first identify the issues that the jury must address, and rules of law applicable to those issues. The judge must also indicate which party has the burden of proof on each issue, and what the nature of the burden is. Generally, the judge will remind the jurors that they must assess the credibility of the witnesses and will instruct them in how to make reasonable inferences of fact from the evidence.

The instructions allow a judge to establish a framework for the jury's deliberations by drawing the jury's attention to the individual issues in the case and, in federal courts, to the evidence relevant to each issue. The importance of the instructions should not be underestimated. The judge is in a position of considerable honor and respect in the courtroom. Moreover, the instructions are the last thing heard by the jury before it begins its deliberation, except in the few states that require instructions before closing. The influence of the instructions on the jury is intentional. This advice given by the judge has long been considered a safeguard against the prejudices and relative ignorance of a lay jury.¹⁷

4 -- Special verdicts and interrogatories

One prominent feature of general verdicts is their inscrutability. Unlike a judge, who writes an opinion, when a jury returns a general verdict it is not required, nor indeed is it permitted, to offer a rationale for the decision. Thus, the general verdict presents the possibility that decisions based on a misunderstanding or disregard of the law will go unchallenged. Two alternatives to general verdicts -- special verdicts and interrogatories -- make jury verdicts more comprehensible and give courts additional control over verdicts. Special verdicts and interrogatories are available in federal courts and the courts of a number of states.

In a special verdict, the jury makes determinations regarding specific questions of fact, rather than issuing a general verdict.¹⁸ The judge then applies the applicable rules of law to the jury's conclusions on the issues of fact and enters a judgment accordingly. When charging the jury to return a special verdict, the judge gives no instructions on the substantive law beyond what is necessary to allow the jury to answer the questions assigned to it.

Rather than charge juries to return a special verdict, a judge can prepare interrogatories on specific issues of fact.¹⁹ When the jury announces its general verdict it will also give answers to each of the interrogatories. The interrogatories serve to explain the grounds for the verdict and to give the judge additional control over the outcome of the case. When the jury returns the answers and the general verdict, one of three things may occur in federal court:

1. if the answers to the interrogatories are consistent with each other and with the general verdict, the judge issues a judgment in conformity with the verdict;
2. if the answers are consistent with each other, but one or more are inconsistent with the verdict, the judge may either enter a judgment in conformity with the answers, send the jury back for further deliberation, or order a new trial;
3. if the answers are inconsistent with each other, and one or more is inconsistent with the verdict, the judge may either send the jury back for further deliberation, or order a new trial.

C. Judicial review

A civil case does not end when the jury returns its verdict. The trial court must issue a judgment, and this judgment is subject to appellate review. This provides two further opportunities for control of the jury's verdict.

1 -- Judgment as a matter of law

If a party makes a motion for a judgment as a matter of law at the close of evidence²⁰ and the motion is denied, the case goes to the jury subject to subsequent review of the legal issues raised by the motion. Following the return of a verdict against the party that made the motion, that party may again make a motion for a judgment as a matter of law.²¹ The motion for a judgment as a matter of law asks the judge to set aside the verdict and issue a judgment in favor of the party making the motion. Alternatively, the party may ask the judge to order a new trial. A judge may set aside the verdict if there is insufficient evidence to support the verdict, or if the verdict appears to be the result of passion, prejudice, or corruption. The judge may also set aside the verdict if the damages awarded appear to be excessive and not supported by the evidence.

2 -- Remittitur

Under a procedure known as remittitur, a judge may reduce the damages awarded by the jury where a losing defendant has made a motion for a new trial. The judge does this by conditioning denial of the motion on the winning party agreeing to accept reduced damages, forcing the winning party to choose between a smaller damages award and a new trial.

There has been a great deal of publicity abroad about awards of punitive damages by civil juries in the United States. In fact, such awards are relatively rare and the press tends to focus on those that seem excessively large. This publicity, therefore, is not a fair basis for evaluating the operation of the civil jury in the United States. It is worth noting here that in addition to remittitur, there is pending federal and state legislation that would further circumscribe in various ways the authority of juries to award punitive damages.

3 -- Appellate review

The general rule of appellate review is that an appellate court cannot review the findings of fact made by a jury. It may only review issues of law, such as decisions made by the judge to exclude or admit certain evidence, to grant or deny motions by one of the parties, or to give or not give certain instructions to the jury. However, an appellate court can rule on the facts to some extent by considering whether the evidence was sufficient as a matter of law to support the jury's verdict. The appellate court reviews the verdict in much the same way as does the trial court. The verdict may be overturned if the evidence was insufficient to support the verdict, if the verdict resulted from passion, prejudice, or corruption, or if the amount awarded by the jury is unreasonable and excessive.

D. Role of settlement and third-party dispute resolution

Finally, it is important to recall that the overwhelming majority of civil law actions in the courts of the United States are resolved through settlements. Indeed, many federal and state courts now mandate (or require the parties to consider) a variety of alternative dispute-settlement mechanisms for attempting to reach agreement among the parties. The techniques utilized range from mandatory mediation to non-binding mini-trials before retired judges. Further, the preliminary rulings of the judge on legal or discovery issues will significantly affect the attitude of the parties towards settlement. Indeed, some cases are settled at the courthouse door and sometimes, although less frequently, during presentation of evidence before submission of the case to the jury. In short, defendants in an American civil case that results in a large monetary verdict, especially in a civil suit arising from product liability or other tort actions, have usually had ample opportunity to conclude the case on a more favorable basis.

ENDNOTES

¹ Maurice Rosenberg et al., Elements of Civil Procedure, Cases and Materials 749-52 (5th ed. 1990) (citing Maitland and Montague, A Sketch of English Legal History 46-58 (1915)).

² See Pamela J. Stephens, Controlling the Civil Jury: Towards a Functional Model of Justification, 76 Ken. L.J. 81, 88-89 (1987).

³ Historically, in the Anglo-American legal system a distinction was made between actions in law and actions in equity. Among the many differences between such actions, proceedings in law employed the jury, while proceedings in equity did not. The formal distinction between law and equity has been abolished in the federal courts of the United States and in most states. However, suits that do not involve claims for money damages - e.g., suits for injunctions - are heard by judges, not by juries.

⁴ "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." us Const. amend. VII. The first ten amendments to the us Constitution, known as the "Bill of Rights," were passed contemporaneously with the Constitution itself and contain guarantees of what are considered the most fundamental individual rights.

⁵ See Stephens, supra note 2, at 89-90.

⁶ Id. at 90-92.

⁷ The rules and procedures governing the jury vary between federal courts and state courts and among the courts of the various states. In this paper, the focus is on practice in the federal courts.

⁸ It is interesting to note that originally, juries were selected precisely because they could decide cases based on their personal knowledge of the case. This began to change with the formalized presentation of evidence that changed the function of jurors from witnesses to finders of fact. By the nineteenth century, it was a legal maxim that juries should base their conclusions only on the evidence presented in court.

⁹ For the purpose of this paper, the characterization of the role of a civil jury in federal court as fact finding is sufficient, but it is a significant oversimplification. In some states, juries are able to decide all issues in a case whether of a factual or legal nature, and may even choose not to apply laws they disagree with. Even in the federal courts, however, where juries are considered finders of fact, courts recognize that many issues that juries must -- and do -- decide contain elements of both fact and law. However, an adequate discussion of this issue is well beyond the scope of this paper.

¹⁰ Fed. R. Civ. P. 56(c).

¹¹ Fed. R. Civ. P. 56.

¹² Fed R. Civ. P. 50. The term "judgment as a matter of law" recently replaced two terms in the federal courts: "directed verdict" (which occurs before the case goes to a jury, as described here) and "judgment notwithstanding the verdict" (which occurs after the jury returns a verdict, and is discussed in Part C, infra). The charge was made to emphasize the close connection between the two actions. The older terms are still quite common and are used in nearly all state courts.

¹³ See supra note 9.

¹⁴ Each party may file motions requesting that the judge use particular instructions. However, it is the judge who ultimately decides what instructions will be used.

¹⁵ Fleming James, Jr., Sufficiency of the Evidence and Jury-Control Devices Available Before Verdict, 47 Va. L. Rev. 218, 235-36 (1961).

¹⁶ Walter W. Steele, Jr. & Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N.C.L. Rev. 77, 102 (1988).

¹⁷ It is worth noting, however, that a number of studies have shown that juries understand only a small portion of a judge's instructions. See Steele & Thornburg, supra note 16, at 77-87. Naturally, this lack of comprehension will blunt the impact of the instructions.

¹⁸ Fed. R. Civ. P. 49(a).

¹⁹ Fed. R. Civ. P. 49(b).

²⁰ See supra pp. 4-5 for discussion of judgment as a matter of law prior to the verdict.

²¹ Such a judgment used to be known in federal courts -- and in many states still is known -- as a judgment notwithstanding the verdict, or a judgment n.o.v. ("non obstante verdicto"). See supra, note 12.

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