Dean's Address

One could persuasively argue that the jury came of age in the trial of William Penn. The jurors there were initially fined by the trial judge for bringing in a verdict against the direction of the court. They were ultimately jailed for their refusal to rule as instructed, but still the jurors persisted. Ultimately, the jurors prevailed, perhaps finally establishing the jury as an independent, and ultimate, arbiter.

Development of the jury system continued in the Colonies. In 1735 John Peter Zenger of New York, the editor of a weekly newspaper, criticized the Colonial Governor, William Crosby. Zenger was arrested on a charge of criminal libel. The judge was influenced by the Governor to convict Zenger, and thus charged the jury that the published matter was libelous, and that truth was no defense. Since Zenger admitted publishing the statement, the instruction was tantamount to directing a verdict of guilt. Nevertheless, Zenger's lawyer asked the jury to consider the truth of the matter, and the jury returned a verdict of not guilty despite the judge's charge. This incident reputedly contributed to the inclusion of the right to jury trial in the United States Constitution. And to this day, the criminal jury has the power to nullify and temper the application of law to the facts. I, for one, think this is a good thing, no less than did the Founders, who, in the Declaration of Independence, described deprivation of the benefit of trial by jury as one of their grievances against King George III.

By the time of William Blackstone the jury system had developed into a deserved cornerstone for the protection of liberty. Blackstone's wonderful admonition in 1791 is still applicable today. He wrote:

So that the liberties of England cannot but subsist so long as this cornerstone remains sacred and inviolate not only from all open attacks which none will be so foolhardy to make, but also from all secret machination which may sap and undermine it by introducing an arbitrary method of trial by justices of the Peace, Commissioners of the Revenue, and courts of conscience. And however convenient these may appear at first, as doubtless all arbitrary powers well executed are most convenient, yet let it be again remembered that delays and little inconveniences in the forms of justice are the price all free nations must pay for their liberty in more substantial matters. These inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution, and although begun in trifles the precedent may gradually increase and spread to the other disuse of juries on questions of the most momentous concern.

That our English brothers did not see fit to wholly follow this advice does not detract from its soundness. And the proponents of efficiency as a means to‑enhance justice would do well to consider if their proposals do not give away more than they gain.

With this brief review of the history of trial by jury, it is frightening that today's critics can really believe what they say, or that they can convince our citizens of the merits of their position. We must not allow it to happen. Let us not forget that a right voluntarily given up is more lost than one violently taken away because there no longer burns the desire to regain it.

I find the simplest and most appropriate illustration of the current problems and dangers in an area of the law in which I have practiced for nearly 25 years: the tort and personal injury field.

During the past year, legislators in several states have been pressured by the business, medical and insurance communities to enact broad so called "tort reform" packages. I say "so called" because I do not believe the changes to be "reforms" in any event, the purported object of these legislative changes is the skyrocketing cost of liability insurance. The arguments advanced in support of the changes are well known. Proponents attempt to create a public perception of over‑zealous lawyers who assert trumped‑up or sham personal injury claims, and then prey on the sympathies of ill‑informed and emotional juries to obtain outrageous and unwarranted money awards.

I think it is fair to state that many of those proposing these changes are attempting to accomplish them through the false development of a crisis mentality with the hope that a concomitant hysterical reaction by the public will make these proposals a reality. And unhappily, this modus operandi has been successful in several states. But the fact that problems exist is no justification for hysteria and, of course, no basis for attacking our fundamental system of justice and trial by jury. As lawyers, trained in the art of problem solving, we know that the best way to solve a perceived problem is first ‑ to state the problem, then to marshal the facts, then ‑ to evaluate the facts in light of the problem in order to reach an appropriate solution.

The danger of the present situation is that we are not following our problem solving procedure. We simply do not possess the empirical data necessary to reach a reasoned solution. As a result, many of the so‑called reforms which are being adopted in a hasty and hysterical climate are proving not to be the promised solutions to the problems for which they were offered. In the meantime, individuals are losing valuable rights and burdens are being wrongly placed on those who can least afford it.

Take, for example, my home state of Florida. During the last legislative session, the State Legislature passed, and the Governor signed into law, a package of tort law changes intended to alleviate a perceived crisis in the state's liability insurance markets. The case for these changes was made by the state's medical, business and insurance industry associations, who, as is usual, blamed over‑zealous plaintiffs' personal injury lawyers and misguided civil juries for their woes. What is disturbing to me is that the proposed reforms had little, if anything, to do with curbing either inappropriate practices by lawyers, or unprincipled decision‑making by civil juries. Rather, the real and primary result of the tort changes enacted in Florida (like those elsewhere) was to drastically curtail the rights of the general public without any actual insurance premium relief. In fact, the Aetna Insurance Company, when required to advise the state insurance commissioner of the effect these changes would have on the premiums it charged, responded that the changes would not affect premiums at all.

Perhaps the most obvious example where rights were given up for nothing in return is the cap on pain and suffering damages. Florida enacted as part of this tort law package a four hundred fifty thousand dollar ($450,000) cap on how much money can be awarded to a personal injury plaintiff for non‑economic losses. That is, no matter how severe the injuries sustained by an individual or how heinous and avoidable the negligence of the tort feasor, a court may not award more than that set amount for the victim's pain and suffering, physical impairment and emotional distress. More importantly, the jury is not even instructed about this cap. And thus, if a jury decides that this element of damage for the now quadriplegic plaintiff should be $1,000,000, the court is required to enter judgment only for $450,000. Thus the jury's judgment, no matter how justified, is simply ignored in the final analysis. No attempt is made by the new law to correlate the amount of the damages' cap to the severity of the injuries sustained.

To the contrary, the most terribly injured people are the only ones being asked to underwrite a promised, but now unlikely, reduction in insurance premiums. It appears doubtful after examining the limited empirical data available that there are enough such cases to significantly affect insurance premiums at all (as Aetna now predicts). The new law unilaterally extinguishes the right of all litigants to recover non-economic damages for injuries sustained ‑ even if legitimate ‑ beyond a certain dollar value. Rather than a carefully tailored remedy to a perceived problem, the legislatively enacted cap on pain and suffering is a clumsy and irrational abolition of individual rights.

Thus, the only real victims of the new law's damage caps are plaintiffs with valid claims of terrible proportions. The individual with trumped up injuries is not a likely candidate for a substantial pain and suffering award. It is the quadriplegic hurt in an agonizing accident who is unjustly denied adequate compensation that he would otherwise receive-and is justly entitled to ‑ by a damage cap. The enacted changes, therefore, are not only illogical, they work perverse results. I suggest to you that the solution to any problems that exist in the civil justice system in this country should not be the abolition of individual rights except as a last resort.

Another example of an hysterical reaction to a perceived problem is the enactment in some states of an absolute statute of repose. An absolute statute of repose places an arbitrary cut‑off in years, from the date on which a product was manufactured, by which time all claim for the negligent design or manufacture of the product must be brought. Such a statute is supposed to prevent perceived abuses that can exist when a product manufactured years before is measured by contemporary standards of safety and engineering, which almost always cast the original product design in an unfavorable light. This type of statute is also intended to circumvent, or overrule common law doctrines that toll existing statutes of limitation until such time as the injury giving rise to a claim can be discovered. The real effect, however, is to extinguish public rights before they can even mature.

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