truth lies between conflicting versions of the facts and applying to the facts, so found, the relevant legal principles. Courts must administer equal justice to the rich and the poor, the good and the bad, the strong and the weak, to men and women of every shade of political belief, to those who enjoy privileged positions and to those who are otherwise despised, feared or even hated. It has always been thought in this country that juries, made up of persons drawn from these various stations in
society, play a desirable part in this process of arriving at justice for all. Plucknett in his famous A Concise History of the Common Law wrote, "... It will be seen tbat in its origin the jury is of a representative character; the basis of its composition in the early days ... was clearly the intention to make it representative of the community." Under our constitutional system of separation of powers, the voting jury - 12 people having no training in the legal system, chosen at random to listen to evidence and to decide - is the judicial branch's connection with the American idea of government of the people, by the people and for the people. They are little democracies on the law in our great big Democracy of Law. Judge Learned Hand reminded us in one of his opinions, ". . . The verdict of the jury is not the conclusion of a syllogism of which they are to find only the minor premise, but really a small bit of legislation ad hoc. like the standard of care." Of course in the common law tort system, the jury always has and still does play a subordinate role to the judge. The verdict of the jurors has no legal effect until judgment is entered on it. Despite the contrary impression those who are pushing for changes in the tort system seek to make, the verdict of a jury, on damages or any other question, cannot change the law. The reformers cry that juries are often gullible and can be manipulated by slick lawyers. On reflection, there is nothing per se objectionable even were that so. As a cab driver quoted in the Wall Street Joumal said, "But that's no problem as long as you've got the slicker lawyer." That a lawyer can have
an effect on a jury is part and parcel of the adversarial process; it is no reason to change the system. Also juries, even once judgment has been entered on their verdicts by a trial judge, do not have unlimited discretion as a matter of law to levy undue or unsupportable awards. Checks and balances on juries already exist in the form of appellate review. Lest anyone doubt this, hardly a better example of the fact could be given than a capsule review of the newsworthy case of Silkwood v. Kerr-McGee. 485 F. Supp. 566 (1979); 667 F.2d 008 (1981); 104 S. Ct. 615 (1984); 769 F.2d 1451 (1985). In 1979, after hearing evidence and arguments on both sides, a federal jury in Oklahoma awarded Karen Silkwood's surviving family $10 million in punitive damages against the Kerr-McGee corporation. In 1981. the U.S. Tenth Circuit Court of Appeals struck down the entire $10 million. In 1984, the U.S. Supreme Court by a 5-4 vote remanded the case to the Tenth Circuit with instructions that the $10 million could be upheld as a matter of law. In 1985, over a strong dissent, the Tenth Circuit again reversed the $10 million award. Earlier this year the Silkwood family, 12 years, one trial and three appeals after Karen Silkwood's death, accepted a settlement from Kerr-McGee for less than $1.4 million - hardly making it a case of Fiat justitia pereat munduB.
Unfortunately, the casualty insurers who are clamoring for changes in the common law system seem malcontent with appellate review as well. In some quarters' barely beneath the conversational level, there is grumbling that "liberal judges and greedy lawyers" are "conjuring up schemes for controls on business through the courts." (A good example of this mindset of some corporate defendants can be seen in the April 7, 1986, Forbes article, "The Hanging Judges of Business.") The question is: to satisfy casualty insurers and their current constituents, should the judicial process be reformed? Businesses cue looking at alternate methods of dispute resolution to avoid civil juries. Overhaul of the common law tort system with an aim toward legislatively restricting juries
should not be one of them. At last it is well worth remembering what Blackstone said about our jury system and the reform of it in one of the most celebrated passages from his Commentaries: "(SJecret machinations which may sap and undermine it. however convenient these may appear at first ... these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and though begun in trifles. the precedent may gradually increase and spread to the utter disuse of juries in question of the most momentous concern." 0
REFERENCES Baldwin. John. and Michael McConville. Jury Triala. New York. Ox1ord University Press. 1979. Blackstone. Sir William, Commentaries on the Law 01 England. Philadelphia, LB. Lippincott and Co.. 1832. de Tocqueville. Alexis. Democracy in America. New York. Vintage Books. 1954. Devlin. Sir Patrick. Trial by Jury. London. Stevens. 1956. Holmes. Oliver W.. The Common Law. Boston. Little Brown & Co.. 1923. Insurance Information Institute. The Lawsuit Crises. 1986. lolley. Liability Insurance and the Jury Trial. 751. Louis U.L.J. III (1962). Kalvem. The Dignity of the Civil Jury. SO Va. L. Rev. 1055 (1964). "Litigation Explosion:' The Wall Street Journal. series of articles May-June 1986, p.1. Plucknett. Theodore F.T.. A Concise History of the Common Law. Rochester. N. Y.. Lawyers Co-op Publishing Co.. (1936). Shaffer. Appellate Courts and Prejudiced Verdicts. U. Pitt. L. Rev. I (1964). "The Hanging Judges of Business:' Forbes. Vol. 137, p. 62. April 7. 1986. "The Tort Explosion," The New Republic. Vol. 193, p. 4, November 18. 1985. "Tort Wars: Inswers Push ... Begins to Slow Down." The Wall Street 10urnal. August I. 1986. p. I. 'Who is at Fault," The Memphis Commer路 cia! Appeal, July 6, 1986, p. E I.
ACCIDENT RECONSTRUCTION AND INVESTIGATION
Expert Witness J. Larry Williams, Ph.D. 2208 Shoshoni Drive Jonesboro, Arkansas 72401 Phone: (501) 972-9222 or (501) 972-0167
July 1987/Arkansas Lawyerl89