9th Greek Australian Legal and Medical Conference
Rhodes, Greece 2003

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AIMING FOR THE PERFECT MODE OF CIVIL TRIAL – ARE CIVIL JURIES AN OUTMODED FORM OF LEGAL DECISION-MAKER?  ARE MEDICAL NEGLIGENCE TRIALS OF TODAY TOO COMPLEX FOR A JURY TO UNDERSTAND?

 

Ms Jacqueline Horan

Lecturer, Faculty of Law, The University of Melbourne

 

 

In 1983, the law publishers Butterworths were forced to pulp approximately 10,000 copies of Lord Denning’s book, ‘What next in the law.’  The book contained a whole chapter of Lord Denning’s experience as a defamation law judge.  This chapter began with these words:  ‘I know all about the law of libel.  I’ve sat on every major case in the last 30 years.’   Lord Denning retired in some embarrassment because of an unwitting libellous statement contained in the book.1   If Lord Denning could not identify a libel, one that he himself wrote, then how can the community expect a small group of laypeople to be able to bring down reasonable verdicts in civil trials?  Is the subject matter of contemporary civil jury trials too complex for a jury to understand? 

 

In this paper I will:

1               Summarise the present position of civil juries in the Australian legal system.

2               Present some of the result of my research into civil juries.2  With the support of the Chief Justice and all the judges of the Supreme Court and County Court of Victoria I was able to conduct a paper based survey of all judges, court staff and all civil jurors in Melbourne, during a twelve month period in 2001.  I obtained responses from 22 judges, 71 court staff and 412 civil jurors. Participation was voluntary.  A 99.5% response rate was achieved for the juror questionnaire. 

3       Address whether the results of my survey presented in this paper support the contention that contemporary civil jury trials are too complex for the average juror to understand.

 

 

PART 1 - The present position of civil juries in the Australian legal system.

 

 

The civil jury system has for many centuries played an important role in the legal system’s ongoing endeavour to achieve perfect decision-making.  However, it is a valid concern that contemporary circumstances may make the civil jury no longer an appropriate decision-maker.

 

As Mr Justice Deane warned:

 

‘…contemporary circumstances have raised new questions about, and placed additional strains upon, the institution of the criminal trial by jury.  There is, for example, obvious force in the argument that a jury of ordinary men and women selected at random from the community lacks the knowledge and experience necessary to sit in responsible judgment upon the type of scientific dispute between specialists that may arise in the course of a criminal trial...’3

 

Justice Deane’s words apply equally to civil trials where complex scientific and medical evidence is just as prevalent as it is in criminal trials.  

 

Highly specialised scientific and medical evidence makes medical negligence cases particularly complicated.  Unfortunately, medical negligence is a boom area of civil jury trial work of the Australian courts.  The County Court of Victoria set up a specialist list to deal with medical negligence cases due to the ‘complicated factual, causational and legal issues’ of such claims.4  As a group of common defendants, medical practitioners are greatly affected by the civil jury system as part of the wider tort system in place. The medical profession has been strong in voicing their concerns over the perceived increasing levels of litigation in Australia and the crisis that they claim this has caused in medical insurance.  As stated by Dr Kerryn Phelps;  ‘Tort law reform is a crucial issue for the…Australian medical profession, and it would not be an overstatement to say that the situation has reached boiling point.’ 5

 

One of the ways in which the NSW parliament has attempted to alleviate the torts crisis has been to remove the rights of its citizens to a civil jury trial.  Over the last few decades, the NSW parliament has introduced piecemeal legislation that has had the effect of virtually removing the rights of its citizens to a jury in a civil trial.  NSW was not alone as most other States and the UK had already removed that right.  Most civil jury trials in Australia are now conducted in Victoria.  I am critical of the NSW parliament’s handling of the problem.  A basic premise of removing the rights of citizens is that there be a proven need for reform.  As the Honourable Dr H V Evatt stated, following his review of the South Australian parliament’s decision to abolish civil juries:

 

‘Perhaps the most important and most practical lesson to be learned from this review of the jury system in Australia is that every proposed alteration or modification of it should be carefully examined and, unless definitely proved to be necessary, rejected.’6

 

The decision to remove civil juries was made in spite of the fact that no research had been conducted into the issue before the litigant’s rights were removed.

When I first began researching the topic, it struck me that most arguments made for and against the removal of the civil jury system are based on no more than anecdote and personal experience.  There is a dearth of valid empirical research on the topic.  This is where my empirical research will assist in a better understanding of the civil jury system.

 

 

PART 2 – Research results

 

Before presenting some of the results of my survey that relate to the issue of whether jurors are capable of understanding civil trials, I want to briefly highlight that that there are limitations as to how far we can interpret this data.  Firstly, due to jury room secrecy, the content of the questionnaires was necessarily limited to ensure that no juror or jury trial could be identified.  Secondly, jurors will be reluctant to admit to any personal failings especially in the context of the jurors just having based a verdict on their assumed understanding of the issues at hand.  Thirdly, jurors may be ignorant as to their failings.  As the jury is not required to provide reasons for their decision there is no way of knowing whether the law has been applied to the facts appropriately. 

 

Mindful of the abovementioned limitations, I constructed the jury questionnaire in such a way as to obtain indirect evidence of the respondent jurors’ level of understanding.7 I asked the respondent jurors about the performance of their fellow jurors rather than asking them to review their own performance.  A person is more likely to identify the failings in others, than their own failings.  Such a question is less confrontational and is likely to encourage a more accurate response.

 

Q25.    In your opinion, did the other members of the jury understand the case?

 

    

 

The respondent jurors did perceive that their fellow jury members were competent decision-makers, with over 90% of them believing that most if not all of the members of their jury understood the case. The jurors were given four optional answers.  ‘All of them’, ‘most of them’, ‘few of them’ and ‘none of them’. Not one of the respondents answered ‘none of them’.  No-one believed that none of the members of their jury failed to understand the case. 

 

I also sought the respondent jurors’ opinions as to the presentation of the evidence in general terms.  If the jurors struggled to understand the evidence it is likely that they would blame the manner in which the evidence was provided to them.   This appears unlikely as 4 out of 5 respondent jurors agreed that the evidence, as a whole was adequately presented. 

 

 

Q19.                Did you find the evidence, as a whole was adequately presented?

Judges’ opinions.

I asked the judges, whether in their experience the presentation of evidence in complex civil jury trials was adequately presented. 

17 of the 20 judges that answered this question thought the presentation was adequate.  The most insightful part of the judges’ responses were their responses to two open ended questions.  It was apparent that the judges were more comfortable in being able to describe their opinion in their own words rather than committing to the words provided to them in the ‘tick box’ questions.  However, the responses obtained to the open ended questions were detailed and insightful.

 

There was a common judicial opinion that juries are able to understand complex civil trials as long as the evidence and the law is competently presented to them.  For example, as the judges explained in their own words:

 

Juror 5 –         ‘Juries have no problem at all providing counsel are competent advocates and make it clear what facts need to be provided and how they propose (or have) proved them.’

Juror 18  -       ‘The jury system is sound and necessary.  Skilled counsel, well prepared and able judges previously skilled in the conduct of cases are necessary components of a fair judicial system.’ 

Juror 21 -        Any difficulties that impact upon the juries’ ability to understand civil trials ‘are dependant upon competent presentation of the case by counsel who are familiar with the issues and the technology.  In that case, the jury are usually well positioned to make a decision on the facts’

 

The opinions expressed in the responses to the judicial survey do not support the contention that civil juries are not capable of understanding complex trials.  As long as the advocates and the judge are competent then the jury will be able to undertake the task of decision-maker.

 

Expert evidence

In seeking the respondent jurors’ opinions as to the presentation of the evidence, I particularly wanted to know what the respondent jurors thought of the presentation of any expert evidence in the trial.  It is expert evidence that is so often anecdotally argued to be beyond the average jurors’ capacity to understand.  Expert evidence is predominantly medical expert evidence. Whilst there is some terrific research that has recently been conducted by Dr Freckelton and others into the presentation of expert evidence in judge-alone trials, little empirical evidence exists to help us understand the juror’s level of understanding of expert evidence.8

 

Over 40 of the jury trials that were subject to my survey, did involve the plaintiff presenting expert evidence.  I asked those jurors whether they thought the plaintiff’s expert evidence was adequately presented?

 


Q16.                Was the plaintiff’s expert evidence adequately presented?

        

 

There was general satisfaction with the manner of presentation of the plaintiff’s expert evidence, with two thirds of the jurors finding the plaintiff’s expert evidence was adequately presented.  7% of respondent jurors were dissatisfied with the presentation of the plaintiff’s expert evidence.  The same question was asked in relation to any expert evidence presented by the defence.  The jurors were consistent in their level of satisfaction, with two thirds finding the defendant’s expert evidence as adequate.  Similarly 7% of them also finding that the defendant’s expert evidence was inadequate.9

 

 

Q18.                Was the defendant’s expert evidence adequately presented?

        

 

 

Juror suggestions

Whilst most jurors were satisfied generally with the presentation of the expert evidence, many suggestions for improvement were made.  Here is an example of some of the juror’s suggestions:

 Juror 43 -       ‘More evidence from treating doctors not just specialists’

Juror 92 -        ‘there could be more people giving expert advice’           

Juror 180 -      ‘supply full information from experts’

 

Jurors wanted more evidence from the medical experts.  There is one American study that considers how civil jurors deal with expert evidence.  This study highlights the fact that the jurors are a critical audience.10 Even when the expert evidence is complex and difficult to follow, jurors make conscientious efforts to deal with the substance of what they hear.  Jurors did not simply accept the evidence given by the witness that they considered to be the most expert.11 The jurors evaluated the content of the expert evidence and were less likely to be persuaded if they did not understand it.  The persuasiveness of the evidence depends, to some extent, on the ability of the expert to clearly explain the basis for the conclusions s/he has made.  These abovementioned observations made in the American research are, to some extent, echoed in the results of my survey.  Jurors do not passively accept expert testimony.  The respondent jurors wanted to be able to follow the reports from experts as and when they are being discussed during the course of the trial.   

 

The respondent jurors also made some useful observations about the general presentation of the case.  These observations were conveyed in the form of four major complaints made by the respondent jurors:

 

1    Lack of use of visual aids.

2    Inability to ask questions of the parties or witnesses.  Almost half of the jurors perceived that they were unable to ask questions and that this was detrimental to the decision-making process.

3    A lack of evidence presented to them particularly failure to call witnesses perceived to be important.

4    Lack of access to documentary evidence and the transcript.

 

The respondent jurors generally sought more information and only a few complained of repetition or irrelevant information being provided. 

 

The impact of Generation-X.

I believe that the criticisms made by the jurors are linked to the changing face of the average juror.  Very recently the average juror has turned from being from the generation of baby boomers to being from generation X.   Over half of the civil juror respondents of my survey were from generation-X (those born between 1961-81).   A compelling new argument is, that the dominance of jurors from Gen-X will mean that the traditional ways of presenting evidence will be less effective. 

Gen-X is used to having information, such as the daily news on TV, being provided to her in summary form with plenty of spectacular footage being delivered by a handsome TV presenter.  If Gen-X becomes bored she reaches for the remote control and surfs for something more interesting.  Gen X attends lectures given in universities and the boardrooms of corporate Australia that are almost always accompanied by a PowerPoint presentation.  In a jury trial, all a Gen-X juror gets is words and more words.  She has no control over what she listens to.  She can’t rely on an advertisement break every 12 minutes.  She can’t rewind the DVD when she looses concentration and misses something important.  The Gen-X juror is a passive listener but she doesn’t like it.  She wants to be a more active participant in the legal process.

 

Five years ago Justice Kirby considered the potential impact of Gen-X in the court room, in a paper he gave that addressed what the jury of the future would look like.   e observeds that He observed that there is a change in the way in which potential jurors receive and expect to receive information and the way they themselves communicate with others and expect others to communicate with them.12 In a paper given earlier this year Justice Eames also noted the impact that information technology has had upon the way Gen-Xers communicate.  Despite encouragement from the High Court of Australia and the legislature for counsel to use visual aids, Justice Eames observed that in his experience it is still rare for counsel to use visual aids to enhance the presentation of evidence.  In one civil trial, Justice Eames attempted to provide a jury with a written summary of competing contentions but was met with resistance from counsel on both sides of the bar table.  Counsel were content if the summary was read to the jury but not if it was given to them.13 Counsel have not modified the way they present evidence in the court room in order to suit their intended audience.

 

The results of my research support the proposition raised by Justices Kirby and Eames.  Generation-X is having an impact in the courtroom.  Of the 11 jurors that made the suggestion that visual aids should be used, 8 of them were in the age groups from 18-45 years.  None of the 26 jurors in the age bracket of 65 and over made such a suggestion.  The results of the survey support the need for the presentation of evidence to change, in order to suit its intended audience. 

 

 

PART THREE - Conclusion

 

Thomas Jefferson observed that the elements of justice alter with every generation.  Consequently, achieving a perfect mode of civil trial involves continual change.14 There is evidence that the civil jury system needs to be updated in order to adequately deal with the needs of the juror of the twenty-first century.  However, the results presented in this paper today do not support the contention that contemporary civil jury trials are too complex for the average juror to understand.  Civil jurors are able to cope with the complexities of contemporary civil trials as long as the evidence and the law are adequately presented to them.

 

These results are one small aspect of my research into the civil jury system.  For example, you may have noticed that for ease of reference I referred throughout my paper to the civil juror as female.  Contrary to the common assumption that women are under-represented in the jury system, the results of my survey show that the Victorian civil juror is more likely to be female than male.15 I am more than happy to discuss other aspects of my research with you at any time.  Thank you.

 

 


ENDNOTES

_______________________________

 

1        Geoffrey Robertson, ‘New York Times v. Sullivan, 20 years on’, Paper presented at the Media Law Association of Australia, Freedom of Expression Seminar, Canberra, 11 August (1984), 5.

2        It is impossible in the space of this conference paper to give a full account of the results obtained from the juror questionnaires.  This paper can therefore give only a glimpse of some of the results.

3        Rv. Kingswell (1985) 159 CLR 264, 302-3.

4        County Court of Victoria 1999-2000 Annual Report.  In response to the increase of medical negligence claims, the County Court of Victoria in 1998 introduced a discrete list of such cases managed as part of the Damages List in the civil jurisdiction.

5        Kerryn Phelps, ‘Tort Law Reform’, unpublished address to a seminar in Sydney on 12 February 2000 per The Hon. Justice Michael Kirby AC CMG, ‘Tort System Reforms: Causes, Options, Outcomes’ (2001), 8, Journal of Law and Medicine 380.  The Australian Health Ministers’ Advisory Council’s Medical Indemnity Jurisdictional Working Party has also been looking at way of reducing he administrative and legal costs associated with health care litigation.  Penny Gregory, ‘Australian Health Ministers’ Advisory Council Medical Indemnity Jurisdictional Working Party as at September 2001’ (2001) 10 (1) Australian Health Law Bulletin 8.

6        H V Evatt, The jury system in Australia (1936), 10, Australian Law Journal (Suppl) 49, 72.

7        A reference to ‘respondent jurors’ refers to those jurors that responded to my survey.

8        Ian Freckelton, Prasuna Reddy and Hugh Selby, Australian Judicial Perspectives on Expert Evidence: An empirical study (1999).

9        Q18 received fewer responses than Q16.  This is most likely caused by two factors.  Approximately 10 of the trials were either settled after the plaintiff presented its’ expert evidence but before the defendant had commenced presenting any expert evidence or alternatively some of the trials may not have necessitated the defence calling any rebuttal expert evidence.

10       Shari Diamond and Jonathan Casper, ‘Blindfolding the jury to verdict consequences’ 26, Law and Society Review (19992) 513.

11       ibid p.557-8.

12       Michael Kirby, ‘Delivering Justice in a Democracy III – The jury of the future’, The Australian Bar Association Conference in Bublin (9 July, 1998), 9.

13       Geoffrey Eames, ‘Towards a Better Direction – Better Communication with Jurors’, paper presented at the Supreme Court & Federal Court Judges Conference, Adelaide, 22 January 2003, 19-20.

14       Virginia L. Muller, The Idea of Perfectibility (1985), 167.

15       The 2001 Census of Population and Housing recorded 51.5% of adult Victorian citizens were women.  52% of the respondent jurors to my survey were female.

 

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Copyright 2003. Greek/Australian International Legal and Medical Conference.
For more information contact Jenny Crofts at jennycrofts@ozemail.com.au