You might think they are contradictory, but I tell you the notions are wholly consistent. We can and should have an independent judiciary. We should also permit juries to nullify the law. The world would be a better place if we appointed judges for life, and set jurors lose. Ordinary citizens might feel that what they say and do in a courtroom matters.
Instead, on the stateside at least, we have the worst of both worlds. We have judges with limited terms and jurors who are routinely lied to and then told to do justice. In the federal system we do have lifetime judges, but the distrust of juries has led these judges often to become the third party in litigation. While the litigants slug it out, the judge represents justice. Or so the theory goes.
I was startled the other day when a federal judge whom I otherwise respect and admire decided, after two years of litigation, that he did not fully understand the complaint. My adversary moved for judgment on the pleadings and had not seen the need to file a motion for a more definite statement. The case perked along through discovery. Suddenly, the judge decided he needed more facts pleaded. If that was not done by a certain time, he would dismiss the action.
I view this judicial conduct as the rough equivalent of an umpire deciding that justice really does a fourth strike might be necessary for the last batter in a close game. So, without either side asking for such an accommodation, the rules get changed to suit the umpire. Both teams adjust as best they could.
In the context of litigation, adjusting to sua sponte dictates of this type adds expense to the case. It may well benefit insurance defense counsel, who can whine and whinny to their claims adjuster about the unfairness of it all, but, hey, they get paid their hourly tribute. Folks working on a contingency fee get hammered. We’re asked to work gratis to satisfy the umpire. Somehow I don’t think this is what the framers had in mind when they created a court system.
Parties come to court seeking vindication and validation. They have stories to tell. They want those stories told, more often than not, to their peers. A jury trial is supposed to be a communal event, appealing to common norms and expectations. When we permit judges to hijack the proceedings, we deprive juries of the right to police the conduct of the parties. We sideline jurors and implicitly tell them that the business of justice belongs in the hand of the wise man in the robe. It’s too important for ordinary folk.
Several years ago, I read several law review articles about whether summary judgment on the civil side comported with the Seventh Amendment right to a jury trial in civil cases. The arguments struck me as outlandish, even bizarre. Summary judgment is a common tool. Indeed, most civil cases disappear in to the black holes of the judiciary. Judges speak of the vanishing trial while they kill it decision after decision.
I am now less inclined to scoff at constitutional challenges to those rules and procedures that empower judges to end cases by judicial fiat. If there is less public respect for the judicial system than we might expect, might not part of the reason for that be that we are killing the judicial system, burying it beneath opaque and impenetrable paper?
We have an evidence code. Let a judge decide what is and is not admissible. There are rules of procedure determining the order in which things should be done, and giving parties the right to discovery. These are all matters of law that must be decided by someone. Let the umpires call these procedural and evidentiary balls and strikes. But when it comes time to deciding facts, let juries decide. I say let them also decide whether the law as charged ought to be applicable. Let juries nullify a law they find unfair or unjustly applied. Expecting questions of ordinary justice to be resolved by legislators is simply naive. How many men and women suffer from the unjust application of a law is even noticed by lawmakers.
An independent judiciary calling balls and strikes makes sense. So does letting litigants submit their cases, both facts and law, to a jury. Jury trials were once an important part of American life. We can make them so once again.
Reprinted courtesy of the Connecticut Law Tribune.