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Page 46 The Metropolitan Corporate Counsel November 2003 Civil Justice Reform – Law Firms Derail The “Runaway Jury” By Promoting Jury Service Within Corporate America: Employers Should Support Jury Service – Here Is How By Joseph M. Rebein nately, some businesses tend to view jury ser- taken off to serve on a jury. An employment James Bascue commented, “We know that one- vice as a nuisance and impediment to their policy should not require employees to use day/one-trial is in the best interest of our and Cary Silverman operation. There have even been reports that accumulated annual, sick, or personal leave employers and the communities we serve.” some businesses may discourage their employ- time to fulﬁll their civic obligation. Employees C. Better Compensating Jurors Selected to SHOOK, HARDY & BACON L.L.P. ees from serving on juries and offer them tips to should not be asked to choose between serving Serve on Lengthy Civil Trials. get out of service. This may occur in formal on a jury and taking their annual vacation. It may be difﬁcult for some employers, I. Introduction employment policies or at the water cooler. C. Promotion of Jury Service and Leading by especially small and mid-sized businesses, to “Runaway Jury” – to ordinary citizens this Employers should realize, however, that by dis- Example voluntarily compensate employees for trials is just the title of a popular John Grisham novel couraging jury service, they are acting against Formal policies can only go so far to pro- lasting more than ten days. For this reason, and new motion picture. But, to any in-house their long-term collective self-interest. It is mote jury service. Executives and managers many employees of smaller businesses, small counsel or civil defense lawyer, the phrase is important to have representative juries that also should lead by example. They should business owners, independent contractors, and likely to create anxiety. Will a lightning strike include people who are familiar with the busi- serve when called for jury service and let their sole proprietors, as well as any other citizen at trial hit me? Astronomical judgments that ness environment. employees know the importance of this civic who does not receive their usual income during would have been considered extreme even just A. Continuing Employee Pay During Jury responsibility. Public ofﬁcials have taken this jury service, is likely to be excused, and the jury a few years ago have been handed down in sev- Service message to heart. Recently, Mayor Rudolph will lose the beneﬁt of their perspectives and eral recent cases. These include several ver- One major reason that people avoid jury Guiliani and former President Bill Clinton experiences. This situation is particularly trou- dicts since 1998 exceeding $1 billion. duty is the ﬁnancial burden that service may made headlines when they responded to the bling in high-stakes complex civil trials, where impose. Most state courts provide a miniscule juror call. Corporate CEOs, managers, and a citizen who is not paid by his or her employer For small businesses the lottery-like nature daily fee for those who serve. Usually, this small business owners can also inspire others to will experience an extreme ﬁnancial hardship. of the civil justice system is particularly worri- amount is barely enough to cover the cost of a serve. Ideally, states would pay their jurors more some. Most small businesses are just one large sandwich and parking near the courthouse. In addition, businesses should consider dis- than they do. Unfortunately, in this time of verdict away from bankruptcy. A 2000 survey Only a handful of states require employers to tributing an informational booklet encouraging tight state budgets, states are not in a position to of more than 1,200 small-business owners com- pay their employees while they are away serv- jury service by employees. Posters placed in signiﬁcantly increase juror compensation out of missioned by the National Federation of Inde- ing on a jury: Alabama, Connecticut, Colorado, employee break rooms and internal websites are the state treasury. The Jury Patriotism Act pendent Business (NFIB) found that one out of the District of Columbia, Massachusetts, other ways employers can show their support includes an innovative “Lengthy Trial Fund” to three small businesses had been sued and more Nebraska, New York, and Tennessee (as well as for jury service. help relieve the burden on jurors serving on than half have been threatened with a lawsuit certain employers in Miami-Dade County, lengthy civil cases. The model act would pro- within a ﬁve-year period. III. Support The Jury Patriotism Act Florida and certain state-contractors in Los vide jurors who serve on civil trials lasting Ensuring that juries are balanced and repre- ALEC adopted the Jury Patriotism Act with Angeles County, California). The requirements longer than three days with supplemental com- sentative of the entire community can help the goal of reducing obstacles to jury service vary in how many days an employer must pay pensation (up to $100 per day) if they would bring about greater predictability and fairness in and making it easier for citizens to serve. (For during jury service, whether all employees or otherwise be excused from service due to ﬁnan- civil litigation. Often, jury pools lack the per- a summary of the model law, see Victor E. only full time employees are eligible for com- cial hardship. In the rare case that a civil trial spective of persons working in business, and do Schwartz et al., The Jury Patriotism Act: Mak- pensation, whether there is a limit on the lasts ten days or more, jurors who are not fully not contain members with backgrounds helpful ing Jury Service More Appealing and Reward- amount of daily compensation, and whether compensated by their employers would be eli- for evaluating or properly weighing complex ing to Citizens, THE STATE FACTOR (Am. there is an exemption for small businesses or gible to receive additional supplemental com- technical, scientiﬁc, or other evidence. Some Legis. Exch. Council, Apr. 2003), available at those who might suffer ﬁnancial hardship. pensation from the fund (up to $300 per day). jurors may even believe that their role is to Many employers have appreciated that sup- http://www.alec.org/meSWFiles/pdf/0309.pdf). transfer wealth and not render justice on the The bill helps ensure a representative jury by The lengthy trial fund would be self-sus- porting employees who serve on juries is not taining and not require any allocation of merits of the case. By way of contrast, a jury only the right thing to do, but also makes good eliminating automatic exemptions from jury pool that includes business people may reﬂect service based on a person’s occupation. In resources by the legislature. Rather, the fund business sense. A study by the American Judi- would be ﬁnanced through a minimal court ﬁl- less anti-corporate bias and may be more likely cature Society estimates suggest that about sev- addition, it provides guidance to courts on the to reach a fairer judgment. acceptable grounds for an excuse from service ing fee – in essence, a small “user fee” of about enty percent of large employers pay their Litigants often fail to receive a trial by an in order to ensure that only those who will suf- ten dollars. The fund is based on the premise employees during jury service. Paying employ- actual jury of their peers because some states fer true hardship are let go. The Jury Patriotism that those who use and beneﬁt from the jury ees during jury service is important to help automatically exempt certain professions from Act also provides several beneﬁts to businesses system should help pay to ﬁnance it. The ﬁling ensure that juries include a representative mix jury service. Other professionals and working as well as their employees. That is the reason fee is not intended to be a barrier to the ﬁling of of working people. Americans escape jury service through a conve- why many business groups support the model lawsuits and would be the minimum amount Unfortunately, too many businesses are nient excuse or by simply disregarding their legislation. necessary to fairly support jurors who serve on unwilling to pay employees for time spent in summons to appear in court. Those who do A. Increasing the Flexibility of Scheduling lengthy civil trials. At roughly the cost of a jury service. Data gathered from a 1999 tele- show up are likely to be excused because the In many states, jurors are instructed to report movie ticket or meal at McDonald’s, the fee phone survey of 800 Michigan residents con- state-provided compensation for jurors is so at a certain date and time with little considera- will not place any credible burden on lawyers or ducted by the court system found that even low that most working people cannot serve on a those with the highest education levels, 56% of tion for their business and personal obligations. their clients. Furthermore, since the fee applies jury and make ends meet unless they continue those with a college degree and 44% of those They may be forced to throw themselves upon to anyone who ﬁles a civil suit, it is just as to be paid by their employers. with postgraduate study, would not receive their the mercy of the court and plead for a deferral of likely to be paid by a lawyer representing a This article offers several steps that employ- regular salary during jury service. A 2001 their service. Under the Jury Patriotism Act, business suing another business as it is to be ers can take on their own initiative to encourage report prepared for the Los Angeles County jurors would have a simple and easy means to paid by a personal injury lawyer. The lengthy jury service. It then discusses model Jury Patri- Superior Court found that 13.5% of private automatically postpone jury service. They trial fund would lend considerable support to otism Act legislation developed by the Ameri- employers in that area do not pay their employ- could call, write, or e-mail the court to resched- jurors serving on extended civil trials. can Legislative Exchange Council (ALEC), the ees at all during jury service. The same survey ule service within six months of the summoned D. Protecting Small Businesses from Losing nation’s largest bipartisan membership organi- found that only 22% of employers pay their date. A juror could use this one-time postpone- Multiple Employees zation of state legislators. The model Act employees their full wages during their entire ment for any reason, such as to schedule jury Currently, there is nothing to stop a court would promote jury service by alleviating the period of jury service, and that 43% of employ- service around seasonal rush times or other from summoning more than one employee of inconvenience and ﬁnancial burden placed on ers provided ten paid days of jury service. work responsibilities. The American Bar Asso- the same business for jury service during the those called to serve, while making it more dif- Some of these businesses may have decided ciation has observed that such procedures same period. Should this occur, it can be par- ﬁcult for people to escape from jury service that it would be too costly to pay employees for “enable a broader spectrum of the community to ticularly hard on small businesses. Under the without showing true hardship. time away from work. But, the frequency in serve as jurors.” Jury Patriotism Act, courts would be required to The Jury Patriotism Act ﬁnds support across which an employer can expect to lose an B. Adopting a Shorter Term of Service postpone the service of a summoned juror of an the political spectrum. Just a few of its sup- employee to jury service is low, and may be In some states, the length of jury service can employer with ﬁve or fewer full-time employ- porters include the NFIB, National Association lower with the adoption of the reforms sug- be several days, weeks, or even months. When ees, or their equivalent, if another employee of of Wholesaler-Distributors, AFL-CIO, and gested later in this article. Lewis Maltby, the a person is called for a long term of jury service, that employer is summoned to appear during National Black Chamber of Commerce. President of the National Workrights Institute, his or her employer may lose the services of an the same period. Elected ofﬁcials have responded to this broad- estimates that, on average, a company with 100 essential employee or face the unpredictability IV. Conclusion based support. Several states passed laws based employees can expect to lose a single employee of having an employee on-call by the court. There are many ways to make jury service a on the model Jury Patriotism Act within months every year for two and a half days. Employers The “one-day/one-trial” system included in the more rewarding experience. Some courts have of its approval by ALEC’s membership in the also should appreciate that there is also a “cost” Jury Patriotism Act guarantees that if a juror is improved their juror facilities, and provided Winter of 2002/2003. for not encouraging workers to serve on juries not selected to sit on a trial, he or she is dis- parking, day care, workspace, comfortable seat- II. Steps Employers Can Take and paying them while they serve. That “cost” missed by the end of the day. This practice has ing, and refreshments. Other courts have To Encourage Jury Service is the systematic exclusion of workers and their been adopted by about one-half of the state focused on engaging jurors in the trial experi- It is important that employers encourage views from juries. courts and endorsed by the National Center for ence. These courts allow jurors to take notes, their employees to serve on juries. Unfortu- B. Adopting Jury-Friendly Employment Poli- State Courts as a best practice. ask questions, and engage in pre-deliberative cies A one-day/one-trial system lessens the discussions. All of these reforms may encour- Nearly all states already make it illegal for impact of jury service on employers. For exam- age citizens to serve. Employers can also con- Joseph M. Rebein is a Partner in the Kansas an employer to ﬁre an employee who responds ple, in Massachusetts, which has adopted the tribute to this effort by adopting juror-friendly City, Missouri ofﬁce of Shook, Hardy & Bacon to a juror summons. A few states go further and one-day/one-trial system, 85% of those who policies and demonstrating that jury service is L.L.P., where he serves as Chair of the ﬁrm’s prevent an employer from taking any adverse appear complete their jury service in just one valued in their company. Employers should General Litigation Division and specializes in action against an employee, or denying day and 95% ﬁnish in three days. New York’s also support the Jury Patriotism Act, which pro- complex litigation. In this role, he serves as advancement opportunities or beneﬁts. adoption of this system reduced the statewide vides further beneﬁts to employers and makes lead trial counsel in complex cases, including An employer jury service policy can go fur- average term of service, previously over 5 days, jury service more ﬂexible and less of a burden antitrust and securities class actions. Cary Sil- ther to encourage employees to serve on juries. to 2.2 days - a decrease of more than 50%. In for all citizens. Through these combined verman is an Associate in the Public Policy Employers should make clear that employees announcing the adoption of the one-day/one- efforts, it will be more likely that a litigant will Group of Shook, Hardy & Bacon L.L.P., and will not suffer any denial of employment rights trial system throughout the California judiciary, be judged by a jury that represents the practices in the ﬁrm’s Washington, D.C. ofﬁce. or advancement opportunities because of time Los Angeles Superior Court Presiding Judge community.
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