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An Invitation to Change: Refocusing on the Jury Trial

The fall 2007 issue of Willamette Lawyer magazine included an article on alternative dispute resolution (ADR) that touted the benefits of mediation and arbitration over the traditional jury trial. It called ADR “the new bedrock of the American legal system.” I take exception to that view. I also am concerned that many advocates of non-trial dispute resolution feel compelled not only to laud the advantages of alternatives, but to bash the trial system in general and jurors in particular. I am on the panel of judges that provides an orientation speech to the 150 to 200 jurors summoned to the Multnomah County Circuit Court every morning. I tell the jurors that people have fought and died for the right to a jury trial. There are good reasons that the right to a jury trial in civil cases is guaranteed by both the Seventh Amendment to the U.S. Constitution and Article I, §17 of the Oregon Constitution.

The Value of the Jury Trial Many methods of dispute resolution could not exist without the backdrop of trials as the ultimate failsafe. Whether a party says “yes” to a mediated settlement is always driven, at least in part, by a consideration of what will happen if they don’t, including a verdict at the conclusion of a trial. If jury trials go away, where is the incentive to settle? Many mediators use the actual results of tried cases, especially jury verdicts, to advise the parties of the outcome they should expect — and the likely risks — if they cannot settle the case. A similar dynamic occurs in court-annexed arbitration, where a trial de novo is available. The arbitrator is usually trying to guess what a jury would do. The lawyers, in advising their clients whether to appeal an arbitrator’s award, must make the same determination. Cases often settle on the eve of trial because the parties are forced to ask themselves how the evidence will look to a group of people from their community who don’t know them and are unbiased and neutral — in other words, how it will look to a jury. There are cases that cannot and should not be settled. These cases need to be decided by a group of people representative of their community. Sometimes views of the facts are so divergent that you need a jury to figure out who is telling the truth. Sometimes

justice means that a defendant who is not liable should not have to pay anything to the plaintiff, not even “a penny for tribute.” Sometimes justice means that a plaintiff should not take less than full compensation for his or her injuries. A sufficient number of civil cases need to be decided publicly so our appellate courts can continue to develop the common law. However, at a much more basic level, we need to know what the community norms really are for the behavior of a “reasonable person.” Jurors tell us how our community values a particular type of injury. There is no marketplace to establish a price for “pain and suffering.” Sometimes, especially in the mass tort context, the parties need to try a handful of cases to learn how a jury is likely to look at the facts and assess damages so that the other cases can be settled.

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Willamette Lawyer | Spring 2008 • Vol. VIII, No. 1  

Recent Law Faculty Publications: Willamette’s law professors prove they are accomplished and productive members of the academic community.

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