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14 A.B.A. J. 507 (1928)
The Jury on Trial

handle is hein.journals/abaj14 and id is 511 raw text is: THE JURY ON TRIAL Consideration of Charges Made Against Jury as Instrument for Administering Justice in Civil Cases-View That It Is Slow and Impedes Disposition of Cases Declared Untenable -Special Qualifications of Jurors as Determiners of Facts-Character of Jurors Not Fairly Pictured by Critics-Capable of Laying Aside Bias, Passion and Prejudices Under Judge's Instructions By HAROLD H. CORBIN Mmcitber of the New York Bar LIMINATION of trial by jury of civil cases is being urged and predicted by several eminent members of the bench and bar. Their views are given such prominence in the current magazines and daily papers, as well as in the several legal publications, that widespread discussion has been provoked both within and without the legal profession. It is natural that a proposed departure from a system so long and proudly associated with our national traditions should arouse common concern. The day is upon us when tradition bows to prac- tical efficiency and no mere reverence for historical usage may long impede an innovation of accredited merit. But it is meet that radical reform affecting such a fundamental institution as trial by jury should move deliberately. Such a venerable method of settling dis- putes is entitled to a tolerance of approach on the part of its assailants. The civil jury, as the trier of facts, should be neither idealized nor condemned because of its long continued use. It should be judged in the light of its present day effectiveness and practicality. Upon its trial, however, its history must be allowed; the lamp of experience must not be dimmed. The jury is said to be cumbersome, inefficient, in- competent, unintelligent. Only recently, one of our most able judges expressed himself as favoring the complete abolit.on of the jury system in contract cases.' His characterization of it was a wasteful, inefficient and outworn fetish. In his opinion: We observe daily the spectacle of twelve perfectly hon- est jurors, untrained in the analysis of evidence, ignorant of the subject matter of the litigation, inexpert in that art pecu- liar to the lawyer by which he quickly absorbs and assimilates as his own that which is primarily the business of othe;s; we see these twelve men sitting through a long complicated trial, with scores of documents and letters and accounts in the evidence, vainly endeavoring to interpret that which they barely understand. We know the waste of time consumed in reading to a jury hour after hour and day after day written evidence which can be handed up to a trial judge and absorbel by him in a few minutes; and we know the frittering away of time in openings and summations. This is a spectac'e which must strike dismay into the heart of every lover of justice. There is no more practical reason today for persistence in jury trial in this type of case than there would be for the con- tinuance of trial by battle. A well-known metropolitan lawyer writes in simi- lar vein,2 listing the faults of juries, charging their unfitness to pass on the merits of controversies, both i Mr. Justice Proskauer-A New Professional Psychology Essen- tial for Law Reform. Address before The Association of the Bar of the City of New York, Feb. 2, 1928. 2. Mr. Robert H. Elder-'-Trial by Jury; Is It Passing? in Har- per's Magazine for April, 1928. civil and criminal, and anticipating the argument of partisans of trial by jury founded upon the historical basis of the process by analyzing the Magna Charta to mean something entirely different from our present method of trial by jury. He advocates the trial by one or more judges as the panacea of the ills he catalogues. I want to record an emphatic dissent from these views. I believe in the jury. I believe in its present day efficiency. I believe it the most practical and most satisfactory arbiter of issues of fact in civil actions whether such actions fall within the legal classification of actions upon contract or actions for torts. I know that juries make mistakes; they may commit grievous errors. What human agency is perfect? But their ever-changing personnel prevents such errors from becoming precedents for future use. In human institutions the question is not whether every evil contingency will be avoided, but what arrangement will, on the whole, be productive of the most satisfactory result. I deny that any single judge, or group of judges, will give to the true administration of justice, any more satisfactory service as the final arbiter of issues of fact than does the jury-an abstract, as it has been called, of the citizens at large. Thirty years ago Joseph H. Choate said : So let me say, and again upon the same authority of personal experience and observation, that for the determination of the vast majority of questions of fact arising upon conflict of evidence, the united judgment of twelve honest and intelligent laymen, properly instructed by a wise and impartial judge, who expresses no opinion upon the facts, is far safer and more likely to be right than the sole judgment of the same judge would be. There is nothing in the scientific and technical train- ing of such a judge that gives to his judgment upon such questions superior virtue or value. . . . The experience of the years and the experience of the day teach the verity of the conclusion of that erudite lawyer. Let us review, in some order, the several counts of the indictment drawn against the civil jury. The first and, to me, the most untenable is the charge that it is slow and impedes the disposition of cases. This count may be popularly attractive at the present t.me when the law's delays have had so much public censure. But for how much of this justly de- plored delay can the jury be held responsible? Clients constantly complain of the two or three years time that e!apses before their cases are reached for trial; but 3. Address to the American Bar Association at Saratoga Springs, N. Y., August 18, 1898.

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