American Civil Litigation
and Dispute Resolution
University of Insubria, Como, Italy
Jeffrey W. Stempel
William S. Boyd School of Law
University of Nevada, Las Vegas
Class 4
The Right to Jury Trial
Jury Trial
• Historically, an English judicial institution
– Although existing in limited or modified form in many
societies
– But for the world at large (including European
countries for most lawsuits), the norm is trial before a
professionally trained judge
• The U.S. adopted the jury trial because it
inherited the English legal system
– Despite the American Revolution, the new nation kept
much of the English judicial system
“Preserving” the Right to Jury Trial
• When U.S. was being formed, a big concern
was excessive power in the new national
government
• General belief that juries would be a
safeguard because jurors are not part of the
government like judges
• Resulted in Amendment VII to the U.S.
Constitution
The Seventh Amendment
• “In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise re-examined in
any Court of the United States, [other] than
according to the rules of the common law.”
• Applies only in federal court
– States are free to go without juries
– But nearly all have similar language in state
constitutions (but often not as broad or mandatory)
Breaking Down the Seventh
Amendment
• Twenty Dollars? Would be $ 253.06 today
– (Tompkins $30,000 verdict would be almost $467,000
today)
• “Suits at common law” means actions for legal
relief as they existed in the U.S. and England at
the time the Amendment was enacted (1791)
• Generally means an action seeking monetary
damages rather than “equitable” relief such as an
injunction
More Seventh Amendment
• The jury trial right must be “preserved” –
generally taken to mean that jury trials must not
be curtailed from what they were but there is no
requirement to expand the jury
• When new rights are created by statute, Congress
need not make a jury trial available
• Jury trial rights, like most Constitutional rights (or
most legal rights) can be waived by a party
• Federal Rule 38 makes it a waiver if the party
does not make a prompt demand for a jury trial
at the early stage of litigation
More Seventh Amendment
• The “preservation” language of the Amendment
has made courts use a “historical” test for
determining whether a jury is required in a
particular action.
• This approach asks whether the claim currently
before the court is like the type of claim for which
a jury was required in 1791
• Conversely, if the claim is not like a “suit at
common law” or an “action at law” from that
time, the Amendment presumably does not apply
More Seventh Amendment
• In addition to the “historical” test, courts use a
“remedy” test to assess whether a claim is
subject to the Seventh Amendment and
requires a jury trial
• The remedy test asks whether the lawsuit is
seeking a “legal” remedy (usually payment of
money). If so, a jury trial right probably
applies – but it can get complicated
Teamsters v. Terry
• Workers have a dispute with the
employer
• And think that their union did not
adequately present their grievance
• Under the collective bargaining
agreement, the union is empowered to
represent the employees
• The employees argue that they received
inadequate representation by the union
• And they want a jury trial
Teamsters v. Terry
• The workers’ suit is one alleging that the
union breached its duty of fair representation
• The opposing party (for whatever tactical
reasons) does not want a jury but prefers a
bench trial of the dispute
– probably concern that layperson jurors would be
more sympathetic to the workers while a judge,
even if sympathetic, would be more willing to rule
against the workers if the law required it.
Teamsters v. Terry
• Issue facing the Supreme Court – Does the
Seventh Amendment apply and is a Jury Trial
required?
• Court must make
– Historical Inquiry
– Remedial Inquiry
• May consider some functional factors as well such as
efficiency, juror ability (but this is controversial)
Teamsters v. Terry
• Majority Opinion
• The breach-of-duty-of-fair-representation suit
is historically and functionally similar to a legal
malpractice action
– And legal malpractice was/is a suit at law
• The Terry claim seeks monetary damages
– And money damages are legal remedy
• The matter is one “at law” and Plaintiff Terry
can have a jury trial
Teamsters v. Terry
• Concurrence by Justice Brennan
• Expresses misgivings about the historical
test
– Judges are legal experts, not history professors
or archeologists
– Even if judges are good at historical research,
it is too time consuming in relation to the
matters at hand
• Although Justice Brennan wants to preserve
a role for history in characterizing the
judicial classification of types of claims, he
otherwise is advocating eliminating
historical test – notwithstanding the
“preservation” language of the Seventh
Amendment
Teamsters v. Terry
• Concurrence by Justice John Paul Stevens
– Agrees with majority and to some extent
with Justice Brennan about eliminating or
de-emphasizing the historical test
– But also takes “functional” or public policy
view
• Jury is revered in the U.S. and is part of
the legal culture
– If the issue is close, jury trial should be
available unless it would be highly
inefficient or otherwise present substantial
problems
– That’s not the case with Terry’s breach of
duty of fair representation claim
Teamsters v. Terry
• Dissent by Justice Anthony Kennedy
• The Terry action for breach of duty to represent is like a
suit against a trustee seeking the trustee’s performance
– And suits to get trust performance were matters of equity
(which even had a separate court of chancery) in England
in 1791
– Because Seventh Amendment seeks “preservation” this is
more important than the monetary relief sought
• The relief sought is “back pay” which can be
considered “equitable” rather than “legal” even though
the relief is paid in cash money
The Ramifications of the Jury: A
Major American Difference
• American Exceptionalism perhaps a chronic
problem
• But the jury trial is something hard-wired into the
U.S. judicial system
– Not like foreign policy, which may vary from George
W. Bush to Barack Obama, etc.
• Because Constitution is difficult to amend and
jury trial is popular, the Seventh Amendment will
probably never change
• But judicial interpretation may be broad or
narrow
The State of the Jury
• England – which inspired the U.S. – now hardly
uses the jury in civil matters
– A major exception is use of the jury in defamation
cases (which is probably a disaster, particularly
because England does not have a robust First
Amendment guaranteeing freedom of speech and of
the press)
• Juries not part of Europe and systems derived
from European colonial days (unless England the
colonizer)
– But some interest in juries in Third World or former
Iron Curtain countries
Impact of the Jury
• Trial must be condensed into a relatively small window
of time
• Cannot ask jurors to hear evidence, go back to work for
weeks, hear more evidence, go back to work, and so on
for weeks, months or years
• By contrast, judge is a full time employee of the
judiciary and may hear evidence in bits and pieces
• Judge also has the benefit of the transcript, notes, law
clerk
• These are usually denied to jurors (e.g., cannot take
transcript into jury room)
Impact of the Jury
• Also more concern about whether the jury
deliberation process can cause problems
– Jury tampering a concern (e.g, bribery, threats, informal
coercion by society)
– Jury may be “sequestered” in hotel to prevent
unwanted social pressure or worse
– May even have “secret” jurors to avoid intimidation or
worse
• Even “garden variety” cases poses concern (e.g.,
judges will not give the jury a case at 16:00 on a
Friday – too much temptation to rush to decision
to start the weekend)
Impact of the Jury
• But the biggest impact is the way in which the U.S.
courts treat the receipt of information at trial
– In systems without a jury, the rules of admitting
information into the record are relatively relaxed.
– Theory is that professional judges will give apt weight to
material and avoid being influenced by inflammatory
matters or information that may seem informative to the
unskilled but actually is misleading or irrelevant
• By contrast, in the U.S., an extensive code of evidence
has developed (The Federal Rules), much of which is
designed to control what information reaches jurors
and under what condition