Jury Reform And The Business Community

Monday, November 1, 2004 - 01:00

The Editor interviews The Hon. Judith S. Kaye, Chief Judge of the State of New York, past President of the Conference of Chief Justices and past Chair of the National Center for State Courts.

Editor: Since you became Chief Judge of the State of New York back in 1993, you have focused on jury reform. I understand that there have been significant developments nationally and in New York on this subject. Can you tell us about them?

Kaye: In the nation and in New York State, I believe we are entering a new and exciting phase in jury reform. It's about time, isn't it?

In the State of New York alone, about 650,000 citizens actually report for jury service each year. That's a lot of disrupted lives and lost personal and work time. But that's also at least 650,000 opportunities a year for New Yorkers to render justice, to participate in our democracy, to learn firsthand what the courts and the process are really like. And it's our unique opportunity - the lawyers and courts - to show the public a system that operates efficiently, and values their time and service.

Despite enormous effort over the past decade, we're still far from our goal - both in terms of public appreciation of our prized jury system and in terms of maximizing our own efficiency. And New York is by no means alone in either respect. So I am delighted with the reinvigorated interest, especially at the national level, because the national effort and attention will unquestionably help kindle reform within the states as well.

I think of two national programs that hold great promise.

The first is the dream, the signature initiative, of Robert J. Grey, Jr. (a Hunton & Williams partner in Richmond, Virginia) for his term as President of the American Bar Association, to achieve better justice through better juries. Robert has divided his dream into two parts. One part is called the American Jury Project, chaired by Arizona attorney Trish Refo, updating the various ABA Jury Standards. The other is called the Commission on the American Jury, working on outreach to the public, including businesses, as well as to the profession and the courts, to change negative attitudes about jury service.

Justice Sandra Day O'Connor is Honorary Chair of the Commission, which I am co-chairing with Manny Sanchez, a Chicago trial lawyer, and Professor Oscar Criner of Texas Southern University, foreperson of the 2002 jury in the Arthur Andersen criminal trial.

A second national program is sponsored by the National Center for State Courts - the National Program to Increase Citizen Participation in Jury Service Through Jury Innovations. This initiative is run by NCSC's Center for Jury Studies (headed by Tom Munsterman), with collaboration from the Council for Court Excellence in Washington, D.C., and the Trial Court Leadership Center of Maricopa County (Phoenix). The name really says it all - the idea being to promote 21st century innovations that can only help improve the entire process.

Together, these groups are working toward improving both the reality, and the perception, of jury service. Too many members of the public still think of a jury summons as something to avoid, rather than a responsibility, and a privilege, of citizenship. Too many "insiders" - lawyers, judges, court personnel - think of their own habits and convenience ahead of those of the public called to serve.

Editor: Could you give just a brief description of what some of the new initiatives are?

Kaye: For starters, all states have ongoing efforts to enhance the jury experience by better use of jurors' time and improvement of juror facilities. In New York, we are now implementing the recommendations of our most recent Jury Commission, chaired by Mark Zauderer, a Manhattan lawyer, regarding juror utilization. Other sizzling hot ideas include preliminary and interim summations; juror note-taking; juror questions (first submitted to the court in writing); and juror notebooks for notes, exhibits and a copy of the charge.

Editor: Is there anything here of particular interest to the business community?

Kaye: Absolutely. The business community is very much on our minds. Since most potential jurors are employed, the cooperation of both employers and employees is essential to keeping our jury system strong. When employers encourage their employees to fulfill their civic obligation and report for jury service, they help protect the fundamental right to trial by jury - which, by the way, is important to them too, since they are frequent litigants in our courts. We all want a representative jury, and an effective process, when our own rights are at stake.

The ABA Commission will, for example, be trying ways to encourage employers to educate their employees about the importance of jury service and assist them in exercising this right of citizenship. We also want to find ways to show appreciation for employers who are themselves model citizens in encouraging jury duty.

From the courts' perspective, we realize that jury duty is often disruptive and inconvenient, and we are doing what we can to minimize the burdens. We have made enormous strides over the last ten years - like expanding the jury pool and thereby reducing the burden of service for everyone, streamlining selection, using jurors' time more efficiently and abolishing automatic sequestration in criminal cases.

In addition, potential jurors are now given the opportunity to make one automatic postponement to a date of their choosing within six months of the initial summons. This gives employees an opportunity to confer with their employers to defer service to a time that may be more convenient for both. Beginning after July 27, 2004, thanks to a new statute, jurors serving anywhere from one to ten days will enjoy a six-year hiatus before they can be called again. Jurors who serve more than ten days will have an eight-year hiatus. We're hoping to encourage jurors not to back away from a lengthy trial. If they can manage to set aside the time, they'll be better off in the long run.

Editor: One subject that seems to generate a fair amount of confusion is payment for jury service. What is the compensation? What, and when, does the employer have to pay?

Kaye: You're right about confusion - no surprise. It's $40 per day in New York Supreme, County, District or City courts. Different rules apply to the first three days of service than to the fourth and any subsequent days. Another source of confusion is that whether the employer or the State has to pay the jury fee depends on the number of employees the employer has. If more than ten employees, the employer pays the jury fee or the wage for the first three days, and the State pays beginning on the fourth day. If ten or fewer employees, the State pays the fee from the beginning. Of course, we encourage and applaud employers who continue to pay regular wages for the duration of an employee's jury service, and many New York employers do so.

And we've been hard at work to eliminate the understandable confusion. We recently issued a handbook called "Jury Service in New York State: A Guide for Employers and Employees" to answer the questions that arise most frequently. It is available in Jury Rooms and is downloadable at our juror Web-site (www.nyjuror.gov). The page concerning juror pay, by the way, gets about 20,000 hits a month.

Of course, the Commissioner of Jurors for each county is available to answer questions - and they do so on a regular basis, whether in person or through the juror Web-site.

Editor: What about employers who believe the business can't afford to let employees serve? Can they do anything to get their employees out of jury duty?

Kaye: An employer is required by law to give employees time off for jury service and may not require them to make up the time. In fact, it's illegal to discharge or penalize an employee for serving on a jury, and an employer who does so is subject to criminal penalties.

In most of our State, we have a one day/one trial program. Regrettably, it's not yet possible in every county - we're working toward it. For even those actually selected to serve, the average length of a trial is three to five days for a civil case, five to ten days for a criminal case. Based on that reality, plus the hiatus between summonses that I mentioned, I would hope employers could look at jury duty differently.

I can't resist a parting thought - that on the one hand, it's enormously disappointing and frustrating for us all to be at this for so many years, still battling some of the same problems. But on the other hand, I do recognize that the task is huge and there is measurable progress. I think the new initiatives of our national partners will energize us all in truly changing attitudes - everyone's attitudes - about jury service.