Judge Posner And The Jury Trial

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There's no judge quite like the Seventh Circuit's Richard Posner. Very few judges have a Facebook fan club, for example ("Richard Posner for Philosopher King," they call themselves; Judge Alex Kozinski has a fan club there too). Judge Posner's opinions have their own searchable database, Project Posner. Last December he appeared for an interview and book-"signing" on Second Life. And of course he's a blogger, co-author of the wide-ranging Becker-Posner Blog.

He's fascinating partly because his interests are so broad, and he pursues them so far. He's written dozens of books on what seem like dozens of topics, from the groundbreaking Economic Analysis of Law to Sex and Reason and this year's The Little Book of Plagiarism.

He's interested in jury trials, too. Although he was never a trial judge, he has presided by designation over "15 or so" trials, and told the Chicago Tribune, "I think I've learned a lot." Last December, the article recounts, he dismissed an entire jury panel when he decided it was likely that one juror had talked inappropriately with the others.

"Why do you want to call this witness?"

When Judge Posner discusses jury management in his appellate opinions, it's with realism and flexibility. The last few months include two examples. In October, Judge Posner dissented with Judges Kanne and Williams from the court's decision to deny en banc review to former Governor George Ryan and his associate, whose crazy trial went six months including a five-day hiatus while the jurors themselves were under criminal investigation. Their joint dissent is a short handbook of jury management in long trials.

[F]ederal trial judges (bankruptcy judges and magistrate judges as well as district judges) recognize and discharge a duty of active trial management. (So much for the umpireal analogy.) They do not defer abjectly to the lawyers’ preferences regarding length of trial, number of exhibits, wording of instructions, and so forth. They often override the strong preferences of the lawyers on both sides regarding such matters. They are not umpires when it comes to management of the trial; they are directors of the drama that we call trial by jury. (Trials are closer to theater than they are to ball games.)

Trial judges can and should control long trials by quizzing lawyers on their witness lists and documentary evidence ("Why do you want to call this witness? If you do call him, what (in general terms) will he be testifying about? What will that testimony add to your case? How lengthy would his testimony be and what would he cover that requires that length of time? Do you really need witness X to discuss topic A when you already have Y to discuss it? Can the parties agree to a stipulation in lieu of some of the evidence?"), putting time limits on trials, and holding active pretrial conferences, Judge Posner and the others went on. And they should do it before they're asked to:

None of these powers to prevent unduly protracted trials has to lie dormant until awakened by a motion. The importance of the trial judge’s vigorous exercise of his or her powers lies in the fact that a trial of the length of the trial in this case places excessive strain on the jury system.

Why do all this? So that the jurors can do their job, the opinion goes on, in an unusual statement of appellate empathy for jurors:

So now imagine jurors’ mental state after six months, bearing in mind that memory loss and the psychological or cognitive problems of jurors in a super-long trial compound the first problem, the difficulty of recruiting competent jurors for protracted trials: a less intelligible trial is heard by a less capable jury. The longer the trial, moreover, the likelier jury misconduct becomes. The jurors become bored, impatient, irritated; the judge’s instruction against discussing the case before the jury retires to deliberate becomes increasingly irksome and likely to be disobeyed.

Bench trials and jury trials

The second example was last week in Olympia Express v. Linee Aeree Italiane, which starts out as a fairly dry civil procedure case. The airline Alitalia was owned by the Italian government when Olympia Express sued it, and so the Foreign Sovereign Immunities Act required that "the action shall be tried by the court without jury." Four years into the lawsuit, Alitalia went priv
ate, and the trial court changed course and allowed a jury trial. Judge Posner's opinion for the Seventh Circuit held that the statute doesn't come and go as the defendant changes hands over the course of the lawsuit, and thus because Alitalia was government-owned when the lawsuit began, it should have had a nonjury trial.

But instead of ending the opinion there, Judge Posner went further, making sure the jury trial the trial court held was not a complete waste. For new lawyers figuring out the real-world differences between a bench trial and a jury trial, it's a nutshell guide:

[T]o provide further guidance on remand, we address an ambiguity in the meaning of the term “nonjury trial.” Does it mean that the trial must be conducted in the absence of a jury, or merely that the “verdict” must be rendered by the judge rather than by a jury? We think it is latter. In many trials some factual issues are to be resolved by a jury and others by a judge[.] . . . .

Consistent with the practice in mixed trials, on remand the magistrate judge should first decide whether the development of the facts at the first trial was sufficient to enable him to make his own findings of fact and conclusions of law on both liability and damages. If so, he need not conduct a further evidentiary hearing; it would be redundant. . . . But he may instead realize that he’s forgotten some of the evidence (the trial took place more than a year ago), or that since he was not the trier of fact he did not pay as close attention to it as he would have done in a bench trial, or that in a bench trial he would have elicited additional evidence (judges are reluctant to question witnesses in jury trials for fear of confusing jurors about who is the trier of fact, but there is no similar inhibition in a bench trial). On any of these assumptions he should conduct a further evidentiary hearing.