Business People, We Need the Jury Trial (Jim Simpson Commentary)

In the room were a live mosquito and a dead body. When the crime scene investigator began to trap the mosquito, it didn’t even try to fly away. Why? Because when the shot was fired, the gunshot residue coated the mosquito’s wings, rendering it incapable of flight. And since the mosquito had, of course, bitten both the victim and the shooter, the mystery was solved by a DNA match using the blood in the mosquito. The case was closed in one hour.

Viewers and potential jurors love the C.S.I. shows. In the recent past, nine of the top 20 nationally rated television shows were forensic crime dramas.

So can real jurors be successfully educated away from the television perception of the expectations of “scientific evidence?” Similarly, can they be persuaded during a jury trial that preconceptions about businesses cheating, destroying documents and hiding facts may not be at all true?

During the debate within the colonies about whether to ratify the Constitution, one of the arguments cited by the anti-Federalists was that the original text did not provide for jury trials in civil cases (even though Article III allowed for juries in criminal cases). The Seventh Amendment remedied this flaw.

The jury process empowers ordinary citizens. Most of us who participate as lawyers in this system see many jurors initially shy away from this power; they feel that “I don’t want this much responsibility” or “I don’t want to judge other people” or “I’m here involuntarily.”

Nevertheless, about 32 million people are randomly selected to serve as jurors in the U.S. each year, and about 50,000 jury trials take place in the U.S. annually in state and federal courts. A jury trial enables the public to participate in the judicial process.

Most trial lawyers can tell you that though jurors often begin the trial process reluctantly, most (even while looking bored through much of the trial) take time and care in their deliberations after retiring to the jury room. Jurors sometimes deliberate longer than the trial itself took. Somber and sincere consideration becomes evident in many ways. It would be easy for a jury to make short work of a corporate defendant’s actions if the jury only needed to know that one party was a corporation.

That’s far from how it works. Jurors routinely and voluntarily wade through long deliberations, asking questions of the judge, asking to review voluminous exhibits and asking for a re-reading of the court’s jury instructions. They move from being hesitant and reluctant to being fully immersed in the process and the outcome. It’s a process that requires jurors to harmonize sometimes vastly divergent competing perspectives.

This is absolutely no criticism of a trial conducted by a judge only. Those work too. But there is something almost magical about the blending — sometimes through intense debate — of different and competing political views, economic backgrounds and religious and cultural traditions. And in this “magic,” more often than not, the right result is reached by a jury.

Empirical evidence about the overall high performance of the American civil jury abounds, and if individuals and companies were aware of it, they’d be much less afraid of jury incompetence. The empirical studies also show that the fact that a party has “deep pockets” does not direct the outcome before a jury. The overwhelming majority of jurors want to get a just result, not one based on the status of a party.

So what is the downside of being overly anxious that a jury is waiting to hammer (financially) a corporate party? The answer is that undue fears are expensive. There is nothing wrong with buying peace if a trial can be avoided — whether it’s before a judge or a jury — by reasonable compromise. But to pay far more than a case is worth just to avoid a jury trial is a mistake. And in a small state, word gets around if a business regularly settles its cases for too much money when facing a jury trial. That’s just not good business. n

Jim Simpson is a partner with Friday Eldredge & Clark in Little Rock, where he heads the firm’s General Litigation Practice Group. He will be sworn in as president of the Arkansas Bar Association on June 14. Email him at