Reconsider the Jury Draft

The only time jury duty gets media attention is when someone famous is involved, as with Los Angeles mayor Antonio Villaraigosa’s recent jury service or when Oprah Winfrey was chosen for a murder trial. That is unfortunate, since America’s jury systems are in crisis.

Jury system crises have triggered commissions to study them and some reforms to be adopted, though the problems have only been sporadically addressed. However, the obviously inefficient use of time when the rich and famous are called to jury duty highlights what would be the single most effective reform – having volunteer jurors, by paying them what their time is really worth – because those problems arise from treating jurors (even Mayor Villaraigosa or Oprah) as if their valuable time was free.

The main complaint about jury duty is its huge waste of juror time. But with juror services essentially costless to judges and lawyers, it makes sense to waste their time, just like anything else with a virtually zero price. If jurors were paid the value of their time, they would be far more effectively utilized, since court systems would finally have appropriate incentives to do so.

Another major complaint is uncomfortable and unpleasant jury facilities. But when jurors are “drafted,” there is little incentive to accommodate their preferences. If they had to be recruited voluntarily, like other employees, they would be willing to work for less under more pleasant conditions, which would lead the courts to provide more juror comfort and convenience to lower their wage bill.

No-shows are another major problem. This boosts costs and administrative difficulties, because many more jurors must be summoned than will be needed. It guarantees that on many days there are too many jurors, wasting their time, and on others there are too few jurors, wasting the court resources underutilized as a consequence. In contrast, paid volunteers would show up like other employees whose jobs depend on it, reducing such waste.

Underpriced jurors cause other problems. In most courts, jurors are not allowed to take written notes, forcing them to rely on their memories in deliberations, leading to delays, mistakes and avoidable jury room disputes over what was actually said and who said it. Similarly, jurors are not generally allowed to submit questions to clarify their understanding, or to discuss the trial during breaks, leading to confusion and wasted juror and court time. If jurors had to be paid, such time-wasting practices would be trimmed.

If jurors were paid, attorneys would be pushed to use plain language rather than legalese, to cut down on juror time now wasted in confusion. The same would be true for judges in giving jury instructions. Similarly, tighter time constraints would be imposed to force attorneys to make their points more quickly and clearly, and to avoid repetitive questions (a pet peeve of jurors). Paid jurors would also spur other efficiencies, such as speeding up jury selection.

Paying jurors would also provide incentives for jurors to become more educated on the law, evidence and procedure, reducing both the likelihood of mistrials and the considerable resources that now go into making sure jurors understand and follow the rules. By giving some the incentive to become “professional” jurors, it would provide an added incentive to be careful and evenhanded, like mediators who wish to remain acceptable to both parties in future disputes (unlike many now, who often just want to finish their involuntary servitude as quickly as possible).

Jurors are the only resource our justice system treats as essentially free, although anyone who has ever been on jury duty can attest that their time is anything but free. As long as that continues, all the hand wringing and jury system reforms will just tinker at the edges of problems firmly rooted in our “draft” system. And the result will still all too often be real financial and personal hardship for too little community benefit.

September 24, 2005