Voices

Whose peers?

Sometimes I'm happy to take the elitist position

Issue: "PAS: The truth hurts," Feb. 8, 2003

A collective sigh of relief wafted through the country late last month when a federal judge threw out of his courtroom a lawsuit against the McDonald's corporation. The class-action suit claimed that McDonald's was liable for the obesity, the diabetes, and any other bad health that might come to customers (especially children) who ate too much high-calorie or high-cholesterol food while sitting under the golden arches.

Even the trial lawyers I have talked to since that ruling agree that it was a far-fetched claim. Lawyers are already the object of enough bad jokes. The last thing they need for their reputation is to have someone come along with still another outrageous court settlement that leaves most of us wondering whatever happened to American justice. It's high time, many folks claim, to rein in the abuses of frivolous and runaway lawsuits.

"Fair enough," say some attorneys. "But in the process, let's not throw the baby out with the bath water."

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That was the argument of trial lawyer Lance Cooper, a WORLD subscriber who spent an hour last week with some of us to discuss reform of the legal system. "Even if some reforms might be called for," Mr. Cooper said, "are you sure you want the federal government-rather than the states-to take on those new powers?"

But even more critical than the issue of jurisdiction, says Mr. Cooper-who is president of the Georgia Trial Lawyers Association-is the threat to the principle of trying such issues before a jury of one's peers. That basic constitutional privilege, he claims, is threatened whenever people start talking about capping awards or arbitrarily declaring cases to be "frivolous" before they are even heard.

Good point, I thought-except that now we face something of a tough dilemma. On the one hand, we can take our differences and our perceived injustices to be adjudicated by an overweening, supererogating cadre of bureaucratic judges. Or, on the other hand, we can trust our futures to a modern-day jury of our so-called peers. The problem with the former is that it gets to be more and more like trusting our future to King George VI. The problem with the latter is that so many of us have had such bad experiences with contemporary juries.

Juries, in modern states, have been intended to replace the crudities of deciding issues (either criminal or civil) by combat or by ordeal. Much better, civilized folks have thought, to have a few ordinary people hear the facts and the law, and then to make a calm decision. These "ordinary people" have usually been thought to be a "jury of one's peers"-although that specific term isn't in the Constitution.

The problem is that the tone in American courtrooms has too much come in recent years to resemble that of combat and ordeal more than calm deliberation. And the men and women engaged in that combat and ordeal seem to many less and less to be a cross-section of your fellow citizens and more and more to be the down-and-outers of society.

"That's elitist," charged Mr. Moore in our gathering last week. And most of us winced at his accusation.

But I'm not sure we should have winced. Some tasks in life aren't for everybody. I don't apologize for being elitist when I look for a neurosurgeon, a 747 pilot, or a math teacher for my kids. I want someone who knows what he or she is doing, and who cares enough to do it well.

Especially when so many smart people have learned the tricks of avoiding jury duty, and when so many smart lawyers have learned the tricks of excluding the smart people who haven't avoided the call, it is a simple fact that many modern juries simply no longer resemble a cross-section of the people bringing their issues to be considered.

On the face of things, you might take a little encouragement from the fact that many jury pools are drawn up from voter-registration rolls. Certainly, one might argue, a person who takes time to vote might appropriately be trusted to hear a case at law. The problem on that front is two-fold: First, our sometimes goofy efforts over the last couple of decades to encourage folks to register to vote-regardless of their interest in civic affairs-sooner or later catches up with us. Second, it might at least work a little better if we limited jury services to folks who actually did vote in the last election rather than simply register to do so. As it is, we've overpopulated our juries with low-interest, low-competence folks. Such a charge doesn't apply to every jury, of course; but it sticks often enough.

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