Trial by jury is a valued tradition within the American legal system, and it is enshrined in federal and state constitutions. But does private enterprise have a role to play? For more and more people, the verdict is in: Private juries deserve a seat in the courtroom.
Private jurors — people hired to serve — are the latest development in “alternative dispute resolution.” ADR, a subset of the civil justice system, uses several innovative means to settle legal disagreements. In “mediation,” a neutral arbiter may help the parties discuss their differences without finding fault. Under “binding arbitration,” the neutral arbiter may, with prior agreement from the parties, impose a solution.
Private-jury trials are an extension of ADR. Private judges (usually retired public judges) and jurors are hired by an ADR firm, which is paid by the parties in a civil suit. Private trials resemble public trials, with rules of evidence and a preparatory “voir dire,” during which lawyers can ask that certain jurors be removed from the jury.
Private trials first caught on in California in the 1980s, when a civil suit could languish for five years before it reached court. Private trials typically bring a quicker resolution to civil suits.
They also offer better jurors. In the public system, jurors are often people who feel compelled to serve by law, not by inclination. Even when faced with a summons from the public court system, many people try to work their way out of jury duty. Nonresponse rates in some localities have reached 60 percent.
In contrast, private jurors are generally motivated to serve. Not only have they taken the job voluntarily, but they are paid to do it well. We use financial incentives to attract lawyers and judges to the justice system. Why not use them to secure jurors, too?
Jurors in private trials are also more knowledgeable. Some ADR firms require jurors to have at least a high school education, while no such requirement exists in the courts. Parties to a private jury trial may find it useful to have jurors who are engineers, accountants or other professionals who know the industry involved in the case. Ironically, such people are often excused or removed from juries in the public court system.
Jury trials can save money. “The private-jury case is quicker and can be cheaper than waiting for a trial to come up in public court,” USA Today has reported. Both sides of a dispute can save thousands of dollars through the flexible use of rules and through more efficient scheduling of costly professional services.
And if “justice delayed is justice denied,” private-jury trials promote justice by bringing quicker resolutions. “A case that takes two weeks to try (in private court) may take five to six weeks in public court,” says the founder of IVAMS Arbitration and Mediation Services, a leader in the industry.
There are spin-off benefits for the public court system. By taking many disputes out of the public courts, private-jury trials can free the public system to resolve criminal cases more quickly.
Some critics fear that private trials are leading to a two-tiered form of justice: a private system for the rich, and a public one for everybody else. Says one attorney, “We are moving away from a truly free public court system that I used to think was a basic part of our constitutional form of government.”
But this objection is largely without merit. The private-jury system is often as accessible as the public court system. In both instances, for example, attorneys for personal-injury plaintiffs usually work on a contingency basis, so there is no up-front cost to the client. Indeed, given the relative speed and efficiency of private trials, private courts may be more affordable than those in the public system.
Some judges in the public courts argue that the increasing use of private judges and jury trials is a way for government to shirk its responsibility to provide adequate funding for the public court system. This is certainly possible.
But the answer to that objection is for government to stop producing nonessential or illegitimate services and use the savings to enhance the public court system. Until then, private-jury trials show promise as an effective supplement.
John R. LaPlante is an adjunct scholar with the Mackinac Center for Public Policy. He contributed to the chapter on the Michigan Department of Corrections in the Mackinac Center’s study of Michigan’s state budget, and he has written for FindLaw.com, the leading provider of legal information on the World Wide Web.