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Law Rules

How we resolve our disputes

Entries in jury (3)


Jury on Trial

In the aftermath of Casey Anthony’s acquittal of murder charges, cyberspace and the public airwaves seem to be full of people complaining about the stupid jurors and our jury system in general. Some have even called it a waste of taxpayer money. I disagree. I think the jurors in Orlando provided an enormously valuable service. With no prior criminal record, Casey Anthony is hardly a danger to the community, like a serial murderer or terrorist. She might be a lying slut, and even a danger to her own (dysfunctional) family, but does that warrant locking her up for life or until the conclusion of the appeals necessary to impose the death penalty? Talk about a waste of taxpayer money.

I don’t know if the jurors made the right decision in this case, but they certainly had a better view of the evidence and witnesses than I did. They were clearly a jury of Casey’s peers. They were also peers of the police and prosecutors. Some of them were parents of children like Caylee. They represented their community and performed their duty well. So I am not going to second-guess their decision.

The Sixth and Seventh Amendments to the U.S. Constitution preserve our right to trial by jury. While jurors’ decisions may be unpredictable, that is precisely what gives us good reason to search for our own collaborative and consensual solutions to disputes. Our founding fathers sought independence, not predictability. I hope that is what everyone was celebrating this past 4th of July weekend. I know I was.


A good example

The recently announced proposed settlement of rescue workers’ claims arising out of the City of New York’s response to the Sept. 11 terrorists attack on the World Trade Center is an example of a good negotiated settlement on the most massive scale. About 10,000 people claim to have been involved in the rescue and clean-up efforts, and to have incurred some illness or injury in the process. Now, with trials set to begin in a couple of months, the claimants, the City, and the fund set up to compensate the workers have come up with a plan to distribute the money. The proposal still needs to be approved by a federal judge and 95% of the claimants, but with both the City and the claimants’ attorneys recommending it, that is likely. Like any personal injury settlement, some claimants will be unhappy. But they will have traded an uncertain claim and the risk of coming up empty-handed for a certain payout. The class action settlement proposal contains a mechanism for determining individual awards based on duration and nature of the workers’ exposure to dangers at the site and on each workers’ actual and potential medical history and condition. Apparently, after nearly 8 years of litigation and with juries almost in the box, both sides finally had enough information to adequately judge the costs, risks and potential rewards of further litigation. As I pointed out in my last post, mediation works best when the participants know their alternatives to a negotiated agreement. I don’t know if the parties actually used a mediator to help them reach this agreement. If anyone knows and cares to comment here, I would welcome your insight.

A few days after my last post, Lee Jay Berman blogged about the problem with President Obama’s attempts to mediate Congressional reforms, such as health care. He noted that the President is not a true neutral. In Berman’s words “He has a dog in the fight …” Berman suggested that what is needed is for the President to appoint a true neutral third-party to mediate the legislative disputes. I agree. And the first thing that mediator should do is to help each side determine their alternatives to a negotiated agreement. Their “jury” (i.e., voters) will be in the box in November. Perhaps that is their Sword of Damocles.


Welcome to Law Rules!

A few days ago, I received an e-mail from a friend of mine with the following link:

The e-mail contained the comment that this link showed a guy who really didn’t want to do his jury duty.  My comment is: guys like this should be prosecuted criminally.  Then, when they plead not guilty and are asked whether or not they want a trial to the court or to a jury, we’ll see what they really think of jury duty.

My point is not that I take offense to a joke about our legal system.  Many websites have collected and published lawyer jokes, some of which are funny.  In fact, the person who sent me the e-mail with the above link is himself a lawyer.  Professor Galanter notes that lawyer bashing has been around since the beginning of U.S. history.  But my experience is that our system of justice is what keeps our society civil and livable.  At a minimum, it sure beats the law of the jungle or street justice.

Having practiced law for more than 30 years, it is time that I started to share some of my observations about how we settle disputes in our system of justice (and the other two branches of government).  Since the government has (or is supposed to have) a monopoly on the legitimate use of physical force, I can think of no more worthy topic for my first foray into the blogosphere.  I do not think our judicial system needs me to be its apologist and I will not try to do that.  Rather, I will try to highlight how and when it works and doesn’t work.  I may even explore ways to improve it, including alternate means of dispute resolution, such as mediation and arbitration.

In any event, I will try to keep my posts timely and relevant.  I invite your comments and I’ll publish the most worthy and coherent.