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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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