Civil Procedure Week 2 (Selecting a Jury and Beginning of Summary Judgment 482-524) Selection and Size of the Jury 1. The Venire and Voir Dire a. The jurors summoned for duty are called the venire b. The jury is selected from the venire through the process of voir dire. c. The purpose of “voir dire” is to gather information about prospective jurors’ possible knowledge, bias, or opinions about the case or the parties. d. Based on the information gleaned through voir dire, there are two paths for “striking” (removing) a potential juror. i. The judge may strike a juror “for cause” if the voir dire shows that the potential juror cannot be expected to be unbiased. Thus, jurors can be struck for cause when they have a close connection with any any of the parties or witnesses or “when they have such fixed opinions that they could not judge impartially the guilt of the defendant.” No limit to the number of strikes a party can request “for cause.” ii. The second path for removing a juror is through the parties’ “preemptory challenges.” Preemptory challenges allow lawyers to strike potential jurors, historically without a need to state a reason. Parties have a limited number of preemptory challenges, which, historically, have allowed lawyers to remove jurors based upon their intuition. iii. Rule 47(a) 2. Preemptory Challenges a. Proponents of preemptory challenges offer several justifications for them i. First, the government was perceived as having an inherent advantage in controlling the selection of the venire. Thus, the defendant’s preemptories helped equalized the defendant’s position. ii. Second, by giving participants some power in the selection of the jury, preemptories helped legitimize verdicts. iii. Finally, preemptory challenges supplement the challenges for cause, allowing lawyers to strike jurors whom they believe to be biased, without having to ask the potentially time-consuming and intrusive voir dire questions that would be necessary to establish a challenge for cause. iv. Today, the number of preemptories is usually fixed by statute. In federal civil cases, each side is entitled to three preemptories. J.E.B v. Alabama Statement of Facts: 1. The state of Alabama (defendant), on behalf of the single mother of a minor child, filed a paternity suit against J.E.B. (plaintiff). During voir dire, the state used nine of its ten peremptory strikes to exclude male jurors, which resulted in an entirely female jury. J.E.B. objected, arguing that the state’s use of peremptory challenges based on gender were prohibited by the Equal Protection Clause of the Fourteenth Amendment, and that the United States Supreme Court decision in Batson v. Kentucky, 476 U.S. 79 (1986), holding that peremptory strikes based on race were in violation of equal protection, applied to exclusions based on gender as well. The court denied J.E.B.’s objection, and the jury found that J.E.B. was the child’s father and ordered him to pay child support. The court of appeals affirmed, and the United States Supreme Court granted certiorari. Issue: 1. Does the Equal Protection Clause of the Fourteenth Amendment prohibit peremptory challenges based on gender? Rule: 1. The Equal Protection Clause of the Fourteenth Amendment prohibits peremptory challenges based on gender. Analysis/Conclusion: 1. Yes. The Equal Protection Clause of the Fourteenth Amendment prohibits peremptory challenges based on gender. There is a long history in this country of excluding women from juries. In this case, the state argues that its peremptory strikes were justified, because female jurors might be predisposed to sympathize with a single mother attempting to receive child support, while male jurors may be more likely to sympathize with a man who was the subject of a paternity challenge. This reliance on stereotypes is exactly the type of thing that equal protection seeks to avoid. When state actors engage in this type of discrimination, the effect is that the state seems to legitimize discrimination, and the efficacy of the court system comes into question. Discrimination in jury selection harms the litigants, the community, and the individuals who were not selected for jury duty based on impermissible factors. It leads to distrust of the legal system, and it must not be tolerated. Justice Oconnor Concurring Opinion: 1. This court’s holding should be limited to the government’s use of peremptory strikes. If this decision applies to all litigants, it will increase the amount of litigation surrounding jury selection, and, most importantly, erode the role of peremptory challenges. Peremptory challenges are an important and wellestablished tradition, and they play a key role in ensuring that litigants try their cases in front of fair and unbiased juries. By further constitutionalizing jury selection, this court is forcing litigants to articulate the intangible reasons why they utilize their peremptory challenges, and may result in a less, not more, fair jury. Justice Scalia Dissent: 1. The court’s decision seems to be more about proving that the court does not harbor bias based on sex than about equal protection. This holding ignores the long tradition of litigants’ use of peremptory challenges as an essential part of ensuring fair trials, and renders peremptory challenges basically useless. The constitution does not sanction disregarding tradition. Summary Judgment – Adjudication without Trial 1. Rule 56 authorizes the court to enter judgment whenever it appears that “there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc. Statement of Facts: Liberty Lobby, Inc. (Liberty Lobby) (plaintiff) filed a libel action against a magazine published by Anderson (defendant). The magazine published three articles that portrayed Liberty Lobby's founder as a neo-Nazi, anti-Semitic, fascist, and racist. Anderson, the publishing company, and the publishing company's president and CEO (defendants) put forth evidence tending to show that they made efforts to verify the information in the article. Liberty Lobby submitted evidence demonstrating that the articles were based on unreliable sources. Anderson moved for summary judgment, and the district court granted the motion. The appellate court held that Liberty Lobby need not demonstrate by clear and convincing evidence that a jury could find Anderson acted with actual malice and was liable for libel. The appellate court affirmed the district court's grant of summary judgment for Anderson as to some of the claims and reversed the grant of summary judgment as to other claims. Issue: In deciding a motion for summary judgment, should the court consider the substantive evidentiary standard of proof that would apply at a trial on the merits? Rule: In deciding a motion for summary judgment, the court should consider the substantive evidentiary standard of proof that would apply at a trial on the merits. Analysis/Conclusion: Yes. In deciding a motion for summary judgment, the court should consider the substantive evidentiary standard of proof that would apply at a trial on the merits. Resolving a summaryjudgment motion requires the court to determine whether a reasonable juror could find for the nonmoving party. Inherent in this determination is the evidentiary standard. In other words, the court cannot decide whether a juror could reasonably find for the nonmoving party without considering the evidentiary burden. Here, the lower court held that Liberty Lobby need not satisfy the clear-and-convincing-evidence standard, even though this is the standard applicable to proof of actual malice. The court should have considered Liberty Lobby’s burden of meeting the clear-and-convincing standard when deciding Anderson’s motion for summary judgment. The appellate court’s judgment is vacated, and the case is remanded. Justice Rehnquist Dissent: The majority has failed to provide the information and guidance necessary to support the lower court’s ability to adequately dispose of summary-judgment motions. Moreover, there is little need for requiring courts to consider the evidentiary standard, as the weight of the evidence is most often based on credibility, which is a topic that is well-known as inappropriate for summary judgment. The Court’s decision will only serve to confuse the issues. Justice Brennan Dissent: The majority’s decision is flawed. First, the majority fails to provide lower courts with meaningful guidance as to the manner in which to consider the evidentiary burden. Second, in attempting to consider the evidentiary standard, lower courts will be tempted to weigh the evidence in a manner that is inconsistent with a civil litigant’s right to a jury trial. That is, the judge will likely become the factfinder, as counsel will need to put forth evidence to support the requirements of the evidentiary standard.
