The Transformation of the American Civil Trial: The Silent Judge (2000)

INTRODUCTION The power juries wield over civil verdicts caused concern in recent decades. Critics claim that unpredictable jury verdicts have undermined confidence in our civil justice system.(1) Many remedies have been proposed. Some advocate more vigorous use of summary judgment, or limits on awards--especially punitive damages--or greater use of mediation and arbitration.(2) Some even recommend abolishing the civil jury in certain types of cases.(3) This Article will explore the history of method of jury guidance that is both rooted in tradition and respectful of juries' power: judicial comment on the evidence.(4) Much been made of the independence of juries in America's early history. But it is not so well understood that this formal independence coexisted with large amount of informal influence the judge on the jury.(5) Judicial comment on the evidence was one of these informal practices, and deep roots in our legal traditions. was widely used in America for some time after the founding. In several states and in the federal courts, it remained vigorous into the twentieth century.(6) The practice grew out of the English courts, which continued to exercise the power to comment until the abolition of civil juries in England after the First World War. Several seminal thinkers about the American legal system believed that the judge's ability to comment on evidence was crucial to the proper functioning of juries, especially civil juries. Tocqueville stressed how important it was in civil cases that the judge help to guide the jury: It is he who unravels the various arguments they are finding it so hard to remember and takes them the to guide them through procedural intricacies(7) He acts as a disinterested arbitrator between the litigants' passions.(8) Comments from the judge performed two important functions according to Tocqueville: They helped to ensure that justice was done and they served to educate jurors in the responsibilities of government.(9) [T]he judge's advice, together with the lawyers' arguments and even the passions of the litigants, helped to give the jury practical lessons in the law so important in democracy.(10) Indeed, Tocqueville says that for these reasons, the jury should be regarded as free school for democracy.(11) The gradual loss of the judges' power to give such advice was of great concern to some later observers. In the beginning of the twentieth century, John Wigmore wrote that the loss of judicial power to comment on evidence has done more than any other one thing to impair the general efficiency of jury trial as an instrument of justice.(12) If the power were restored, he predicted [a] new birth of long life will then be open for the great and beneficent institution of Trial Jury.(13) This Article will describe how this important power of judicial comment on the evidence was used earlier in our history and how it was lost. was lost, the Article will propose, on regional basis. Southern and western states led the way before the Civil War in restricting judges' ability to comment. Fortunately, legal historians have shown growing appreciation of the role of regional differences in shaping law.(14) Regional distinctiveness is important, and highlights the part that legal and social culture play in delineating the role of the judge, jury, and lawyers--in that or in any other time. Certain social and political conditions make it very difficult for judge to take the jury by the hand to guide them, after the arguments of counsel.(15) If these conditions exist today, and it is not possible for judges to give meaningful guidance, we might well consider whether civil juries are worth the trouble. Jurors are denied the benefit of dispassionate advice from the judge, thus limiting the value of the free school of civil jury service.(16) And not least, jury awards are likely to remain unpredictable. …