CIVIL PROCEDURE CLASS 16

1. CIVIL PROCEDURE CLASS 16 Professor Fischer Columbus School of Law The Catholic University of America October 10 & 15, OR October 12, 2001

2. WHAT WILL WE COVER IN THIS CLASS? • Learn about the circumstances in which there is a right to trial by jury in civil cases under the Seventh Amendment of the U.S. Constitution. • Discuss Practice Exercises Nos. 17 and 18

3. ORIGINS OF RIGHT TO TRIAL BY JURY • Lost in the mists of time, the origin of trial by jury has long baffled historians. • Some historians believe that this evolved among the Greeks and brought to England by the Romans • Others: invented by Alfred the Great (871-899 AD) • All agree that King Henry II (1154-1189) and Magna Carta of King John in 1215 spurred the development of the modern jury system

4. MAGNA CARTA The 29th clause provides:] No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right

5. THE RIGHT TO TRIAL BY JURY • In 1468, Sir John Fortescue, Chief Justice of the King's Bench, proclaimed trial by jury "the most rational and effective method for discovering the truth."

6. A COMPARATIVE PERSPECTIVE: THE DEMISE OF THE CIVIL JURY IN MANY OTHER COMMON LAW COUNTRIES • Civil juries have virtually disappeared in England, where they originated. Since the later 19th century, civil juries may only try a handful of causes of action. • In 1883, the English Supreme Court Rules provided that "the right to a civil jury trial was limited to actions for slander, libel, false imprisonment, malicious prosecution, seduction and breach of promise of marriage." Id. • Civil jury trial has also been cut back in many other common law countries, e.g. Australia, Canada, Jamaica

7. JURY TRIAL IN AMERICA IS ALIVE AND WELL • In the United States, the right to trial by jury is guaranteed by the sixth and seventh amendments to the Federal Constitution. • In 1788, Thomas Jefferson stated that trial by jury is "the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution." • Before we consider the Seventh Amendment governing the right to jury in civil cases, let’s consider the function and advantages/disadvantages of civil juries

8. FUNCTION OF A JURY • What is the function of a jury in a civil case?

9. FUNCTION OF A JURY • What is the function of a jury in a civil case? • Function of a jury • 1. Determine the facts • 2. After the judge instructs the jury on the law, the jury applies the law to the facts • 3. Jury renders a verdict, which becomes a judgment • What are the pros and cons of trial by jury?

10. SOME BENEFITS ARGUED BY PROPONENTS OF JURIES • Jury an effective means of dispute resolution • Jury offers protection against abuse of power by government or judges • Jury introduces broad-based community values to dispute resolution • Jury provides a check on bureaucratization of the legal system • Jury facilitates public understanding and confidence in the judicial system

11. SOME ARGUMENTS BY JURY OPPONENTS/REFORMISTS • Trial by jury is inefficient: causes trials to take longer than they should • Incompetent jurors: A principal concern among proponents of jury reform is the issue of juror retention and comprehension of court instructions and evidence, which they argue is low and leads to unjust verdicts • Biased jurors: Juries are overly influenced by prejudice and passion

12. Other debates about civil juries (other than abolishing them) • Juror note-taking • Juror questioning of witnesses • Simplifying jury instructions • Giving legal instructions to jury before evidence is heard • Increasing juror fees • Reducing juror down-time by scheduling attorney-counsel conferences when jury absent

13. DIFFERENCES BETWEEN JUDGE AND JURY TRIAL • Qualifications: judges overwhelmingly white, male, middle aged; juries may vary widely • Competence: can juries understand complex facts? • Verdicts: juries don’t have to give reasons; judges must issue rulings with specific findings of fact

14. RIGHT TO A JURY IN CIVIL TRIALS • The Seventh Amendment governs trial by jury in civil cases • “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United Stated, than according to the rules of the common law.” • What limits on jury trial are required by the Seventh Amendment?

15. WHAT LIMITS ON JURY TRIAL IN FEDERAL CIVIL ACTIONS? • Limited dollar amount ($20) • “Suits at common law” • Amendment VII does not create a right to trial by jury, but PRESERVES the right to trial by jury as it existed at ratification of the amendment in 1791 • See FRCP 38 (codifying Amendment VII)

16. FRCP 38 • (a) The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate

17. IN ENGLAND, IN 1791, TWO TYPES OF COURTS/ACTIONS • 1. Common law courts (King’s Bench, Exchequer, Common Pleas) - trial by jury, which replaced earlier procedure of trial by ordeal, battle, or swearing of neighbors that they believed party • 2. Equity courts (Chancery) - no juries

18. DECIDING WHETHER THERE IS A RIGHT TO TRIAL BY JURY: THE HISTORICAL TEST • 1. Could the claim have arisen in England in 1791? If so, would it be brought in common law or in equity? YOU ARE RESPONSIBLE FOR LEARNING THE COMMON LAW/EQUITABLE STATUS OF THE CLAIMS ON THE HANDOUT • 2. New claims that did not exist in 1791. See, e.g., Terry case

19. HYPO • Priscilla and Darius sign a contract. Priscilla sues Darius, alleging breach of contract and seeking money damages. Does Priscilla have a right to trial by jury of this claim? • What if Priscilla seeks specific performance of the contract?

20. TERRY CASE • What are the key facts of this case? • What is the constitutional issue for the Supreme Court?

21. OPINION OF JUSTICE MARSHALL • How does Justice Marshall rule on the constitutional issue? • What is his reasoning?

22. MARSHALL: A 2 PART TEST • 1. Find the best 18th century analogy: • suit to vacate arbitration award? Trust beneficiary vs. trustee? Attorney malpractice? • 2. Examine the remedy sought and determine whether legal or equitable in nature • Which is the most important step?

23. Scope of Right To Jury Trial According to Justice Marshall • Is Justice Marshall’s view of the right to jury trial expansive or limited?

24. BRENNAN’S CONCURRENCE • How does Justice Brennan’s reasoning differ from Justice Marshall’s? (I.e. what does Brennan think of the two-part analogy test and why?)

25. BRENNAN’S CONCURRENCE • “Since the existence of a right to jury trial therefore turns on the nature of the remedy,absent congressional delegation to a specialized decisionmaker, there remains little purpose to our rattling through dusty attics of ancient writs. The time has come to borrow William of Occam’s razor and sever this portion of our analysis.”

26. DISSENT OF JUSTICE KENNEDY • What is the basis for this dissent? • To what extent does Kennedy J. agree with Marshall J.? To what extent does he disagree?

27. ASSESSING THE HISTORICAL TEST • Does the historical test make sense? • Does it really work?

28. NEW STATUTORY CLAIMS • Sometimes Congress explicitly provides for trial by jury in federal statutes. • Sometimes trial by jury is implied. • Where it is unclear, court should look at: • 1. Is the legislative purpose to set up an administrative scheme for dispute resolution outside of courts? If so, no jury trial • 2. Does the statute create a mechanism for enforcing public rights? If so, no jury trial • 3. What are remedies in statute? If equitable, no jury trial

29. HYPO • Congress passes a statute creating a new private right of action for sexual harassment and authorizing both injunctive relief and damages. The statute provides that ALL questions of fact shall be tried by a jury, no matter what remedies are sought.

30. FOLLOW-UP HYPO • Congress passes the same statute, but it provides that all questions of fact shall be tried by a judge, regardless of the remedies sought.

31. SEVENTH AMENDMENT and State Law • Seventh Amendment is one of the few Bill of Rights guarantees not applied to states through the 14th Amendment • Most statute constitutions provide for a right to trial by jury • It varies from state to state. In some places, it is broader than the federal rights, in other cases it is narrower.

32. LEGAL & EQUITABLE CLAIMS IN SAME ACTION • Complication that arose after merger of law and equity • Beacon Theatres, Inc. v. Westover (1959): U.S. Supreme Court held that, in action involving both legal and equitable claims, if a common factual issue, then the legal issue must be tried first, then a judge can rule on the equitable claim • Why? Because if equitable claims tried first and precluded common legal issue, litigant would be denied right to a jury

33. DEMANDING JURY TRIAL • IF there is a right to a jury for a particular issue AND a party wants jury trial of that issue, that party must demand jury trial under FRCP 38 • DEMAND SHOULD SPECIFY ISSUE WHICH THAT PARTY WANTS TRIED BY A JURY • TIME LIMITS - jury demand must be served w/in 10 days of service of last pleading raising/responding to that issue • FAILURE TO SERVE/FILE JURY DEMAND RESULTS IN WAIVER OF RIGHT TO JURY TRIAL

34. PRACTICE EXERCISES • No. 17 • No. 18

35. PRACTICE EXERCISE NO. 17 • You are a politician assigned to a legislative committee that is deciding whether to allow jury trials for Title VII disparate impact discrimination suits, like the Cleveland Firefighters suit. Decide whether the Seventh Amendment requires (or should require) the right to trial by jury in such cases. Should Congress provide for juries as a matter of right in disparate impact cases?

36. PRACTICE EXERCISE 18 • You are an associate at a staff meeting of the attorneys in the City of Cleveland case. The task of this meeting is limited to one question: whether or not to demand a jury trial. • If your last name begins with the letters A-L you are counsel for plaintiffs; all others represent the defendants.