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Jury Trials--Reasonable Minds May Differ

by Paul Bergman and Sara Berman-Barrett
Copyright © 1993 Nolo Press

Trial by jury is one of the traditions of the Anglo-American legal system. But many cases, especially civil cases, are decided by a judge sitting without a jury. Some kinds of cases never have a jury.

Are You Eligible for a Jury Trial?

Whatever your personal preference between judge and jury, a jury trial may not be available for your case. For example, you are not entitled to a jury trial if you are seeking not money but an order that your adversary do something, such as tear down a building that encroaches on your property. Also, in most states, you cannot have a jury trial in cases involving child support and child custody. In most other cases, such as those involving personal injury, breach of contract, professional malpractice, libel or slander, you are entitled to a jury trial.

And You Thought We Won Our Independence

The reason that jury trials are not available in all kinds of cases is that many of our legal procedures trace their roots to England, where in centuries past there were two kinds of courts--law courts and equity courts. Jury trials were available in courts of law but not in courts of equity. Today, even though these ancient distinctions between courts have largely disappeared, your right to a jury trial often depends on whether English courts would have dealt with your case in the law or equity courts. Ironically, England, which started the whole mess in the first place, has nearly eliminated jury trials in civil cases altogether.

Are You Better Off With a Judge or a Jury?

As a pro per, you are almost always better off trying your case before a judge than a jury. By not going before a jury, you do not have to worry about:

  • how long before trial you have to make a jury request
  • depositing jury fees with the court, or
  • preparing jury instructions.

In addition, a judge trial is likely to be more informal and easier for you to conduct than a jury trial. For example, in the absence of a jury, your judge may not insist on strict adherence to courtroom procedural rules and rules of evidence. And, of great importance, you can reasonably expect a judge to ignore inflammatory, irrelevant or other inadmissible evidence from your adversary that slips by you because of your unfamiliarity with evidence rules. Jurors, however, may well be influenced by the evidence even if the judge tells them to disregard it.

Despite the additional complexities a jury trial brings, you may prefer one because you think that a jury will be more sympathetic to your case than a judge. But whether a judge or a jury trial is more likely to produce a favorable result is a complicated question--one that many experienced lawyers readily acknowledge rarely has an easy answer. Lawyer folk wisdom often points to choosing a jury if a case has emotional appeal, and choosing a judge if a case is complex and based on technical legal questions.

You may end up with a jury trial even if you prefer a judge trial, because your adversary has an independent right to request a jury trial. If your adversary requests a jury trial, you will have one whether or not you want one.

Asking for a Jury Trial

Even if your case is eligible for trial by jury, in most court systems it will be tried by a judge alone unless you or your adversary makes a jury trial request. Jury requests must usually be made in writing well in advance of trial and even before a trial date is set. If you miss the request deadline, you waive or give up the right to a jury trial.

You can also lose your right to a jury trial if you fail to post jury fees on time. People selected as jurors receive a small amount of money for each day they serve. In most court systems, whoever requests a jury usually has to pay a deposit of one day's jury fees--often $50 to $150--before trial.

Choosing a Jury

If you're representing yourself in a jury trial, you'll be asked to help select the jury before the trial starts. The exact procedures for selecting a jury vary from one court system to another, but there are similarities in all courts. On the day your case goes to trial, a group of prospective jurors is selected at random. If the jury will consist of the traditional 12 jurors, about 30 prospective jurors will be called. But because in many court systems, civil juries consist of only six or eight jurors, the jury pool is likely to be smaller.

The pool of prospective jurors is bought into the courtroom, and a smaller group is chosen at random and seated in the jury box. The judge or the judge and the parties ask them questions. The goal of this questioning process, which goes by the old French term, voir dire, is to select a fair and impartial jury.

Initially, jurors are usually questioned by the judge about their backgrounds, such as their marital status, occupations and previous jury service. Then either the judge or you and your adversary will question them further, searching for biases that might prevent them from being fair and impartial. For example, if you're suing an attorney for malpractice, it makes sense to question the prospective jurors as to their experiences with or biases for or against attorneys.

Who Questions Prospective Jurors

Traditionally, lawyers did almost all of the voir dire questioning. However, many judges have come to believe that lawyers take up too much time and try to persuade jurors of the merits of their cases rather than simply select a group of impartial jurors. As a result, today many judges conduct most or all voir dire questioning.

After the panel of jurors has been questioned, you and your adversary are allowed to excuse prospective jurors in a process called challenging jurors. If the judge allows the challenge, the challenged juror will be sent back to the jury room, and a new prospective juror will be selected at random from the original jury pool and questioned.

The question-and-challenge process continues until both sides accept the same group of jurors, or until both sides have challenged as many prospective jurors as they are allowed by local court rules. At that point the court clerk officially swears in the jury and trial--mercifully--begins.

Your Right to Challenge Jurors

There are two kinds of juror challenges. In a challenge for cause, you ask a judge to excuse a prospective juror on the ground that something in that person's background or answers to questions indicate that the person is not fair and impartial. You and your adversary are allowed an unlimited number of challenges for cause, because you are both entitled to jurors who are fair.

The second kind of challenge, a peremptory challenge, is one that you can exercise for any reason whatsoever. Unlike a challenge for cause, you don't have to explain or justify your challenge to the judge. For example, perhaps you want to excuse Juror Number 8 because she has an occupation that suggests to you that she will not give you a fair shot, or because she smiled at your adversary but not at you. If this sounds too good to be true, be aware of a major restriction on peremptory challenges: you get only a few. The number of peremptory challenges allowed varies from one court system to another, but is usually restricted to four or six.

Opting Out of Jury Selection

You don't have to play the voir dire game. At least one authority, California Superior Court Judge Rod Duncan, suggests that a pro per litigant may be better off simply standing up and saying, "These look like good and honest people to me. I'm not a lawyer and neither are they, and I trust them to apply the law fairly. No questions." Particularly if your adversary is represented by counsel, the jurors may empathize with your "little guy v. big guy" approach.

Side Bar--Civil and Criminal Cases: Big Differences

Civil cases arise when private citizens, including corporations and other associations, sue each other. Criminal trials occur when a state or the federal government seeks to punish someone for violating a criminal law. The major differences are:

The Result

Civil cases typically involve money paid by one side to the other; criminal cases may result in fines paid to the government and imprisonment.

The Burden of Proof

In most civil cases, a plaintiff wins by convincing a judge or jury by a preponderance of evidence that a claim is true. In criminal cases the prosecution must prove a defendant's guilt beyond a reasonable doubt.

The Right to a Jury Trial

You are entitled to a jury in all criminal cases, but not in all civil cases. Also, most states require unanimous jury verdicts in criminal trials, but agreement by only three-fourths of the jurors in a civil case.

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The selected articles originally appeared in the Nolo News and are Copyright © Nolo Press 1996 and reproduced here with permission. If you find them of value, we encourage you to visit Nolo Press at their web site If you wish to post them on-line or otherwise distribute them, first read Nolo's copyright policy.

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