The transformation of the American civil trial: the silent judge.

• Author: Lerner, Renee Lettow

INTRODUCTION

The power juries wield over civil verdicts has caused concern in recent decades. Critics claim that unpredictable jury verdicts have undermined confidence in our civil justice system.(1) Many remedies have been proposed. Some advocate more vigorous use of summary judgment, or limits on awards--especially punitive damages--or greater use of mediation and arbitration.(2) Some even recommend abolishing the civil jury in certain types of cases.(3) This Article will explore the history of a method of jury guidance that is both rooted in tradition and respectful of juries' power: judicial comment on the evidence.(4)

Much has been made of the independence of juries in America's early history. But it is not so well understood that this formal independence coexisted with a large amount of informal influence by the judge on the jury.(5) Judicial comment on the evidence was one of these informal practices, and has deep roots in our legal traditions. It was widely used in America for some time after the founding. In several states and in the federal courts, it remained vigorous into the twentieth century.(6) The practice grew out of the English courts, which continued to exercise the power to comment until the abolition of civil juries in England after the First World War.

Several seminal thinkers about the American legal system believed that the judge's ability to comment on evidence was crucial to the proper functioning of juries, especially civil juries. Tocqueville stressed how important it was in civil cases that the judge help to guide the jury: "It is he who unravels the various arguments they are finding it so hard to remember and takes them by the hand to guide them through procedural intricacies"(7) He acts as "a disinterested arbitrator between the litigants' passions."(8) Comments from the judge performed two important functions according to Tocqueville: They helped to ensure that justice was done and they served to educate jurors in the responsibilities of government.(9) "[T]he judge's advice," together with the lawyers' arguments and even the passions of the litigants, helped to give the jury "practical lessons in the law" so important in a democracy.(10) Indeed, Tocqueville says that for these reasons, the jury should be regarded as a "free school" for democracy.(11)

The gradual loss of the judges' power to give such advice was of great concern to some later observers. In the beginning of the twentieth century, John Wigmore wrote that the loss of judicial power to comment on evidence "has done more than any other one thing to impair the general efficiency of jury trial as an instrument of justice."(12) If the power were restored, he predicted "[a] new birth of long life will then be open for the great and beneficent institution of Trial by Jury."(13)

This Article will describe how this important power of judicial comment on the evidence was used earlier in our history and how it was lost. It was lost, the Article will propose, on a regional basis. Southern and western states led the way before the Civil War in restricting judges' ability to comment. Fortunately, legal historians have shown a growing appreciation of the role of regional differences in shaping law.(14) Regional distinctiveness is important, and highlights the part that legal and social culture play in delineating the role of the judge, jury, and lawyers--in that or in any other time. Certain social and political conditions make it very difficult for a judge to take the jury "by the hand" to guide them, after the arguments of counsel.(15) If these conditions exist today, and it is not possible for judges to give meaningful guidance, we might well consider whether civil juries are worth the trouble. Jurors are denied the benefit of dispassionate advice from the judge, thus limiting the value of the "free school" of civil jury service.(16) And not least, jury awards are likely to remain unpredictable.

Historians and legal scholars have not examined the loss of judicial power to comment on evidence in much depth, despite its importance to the functioning of jury trials.(17) This most likely reflects the greater attention paid to the history of substantive law compared to the history of procedure,(18) and the difficulty of understanding informal practices such as comment on the evidence. To the extent there has been any investigation of the subject, scholars have tended to suggest two broad reasons for the loss of the power to comment. First, loss of the power is thought to be a natural outcome of division of functions between judge and jury into separate spheres, with the judge deciding the law and the jury the facts.(19) Second, populist tendencies associated with Jacksonian democracy are said to have encouraged such limitations on the judges' power.(20) These limitations included popular election of judges as well as prohibitions on comment.

There is truth to both explanations, although the story is more interesting than that. Both of these reasons leave out the important role of regional differences in determining whether judges retained or lost the power.(21) The two explanations above would seem to be valid in many parts of America before the Civil War, whereas in fact judges lost the power almost exclusively in the South and West during this period. Certain conditions in the South and West seem to have made these areas more likely to restrict judges' power by prohibiting comment.

First, in many parts of the South and West, governmental or official authority, such as that of judges, was little respected. Physical and verbal violence abounded, and the courtroom was no exception. Coupled with this violence and disdain for official authority was a fierce independence and faith in "plain common sense," as opposed to legal learning or traditions such as the judge commenting on evidence. Sometimes judges themselves were physically or verbally violent, and shared the common perception that legal learning and traditions were pedantic and useless. Such an atmosphere did not encourage judges to calmly comment on evidence, even if they wanted to.

Second, the legal profession was different in the South and West. It is important to remember that judges and juries are not the only players where judicial powers such as comment on evidence are concerned. Lawyers stand to gain more control over a trial if the judge is prevented from exercising such powers.(22) The "separate spheres" and "democratic populism" arguments described above tend to obscure this point. Lawyers in the antebellum South and West for the most part seem to have been extremely aggressive and jealous of courtroom control. They were fully as physically violent as their nonlawyer peers, and even more given to abusive language. They reveled in the culture of passionate rhetoric prevalent at the time. They were entrepreneurial and independent of court control in the matter of fees. Perhaps most importantly, they were deeply involved in politics and partisan struggles, to a greater extent than their northern counterparts. This gave them (or a significant number of them) power in the legislatures and constitutional conventions to put in place prohibitions on judicial comment--comment that could interfere with their efforts to sway the jury.

The Article draws on a wide variety of nineteenth-century sources to clarify how comment on the evidence was used, and the reasons for its loss. These sources include treatises, appellate opinions, trial court records,(23) reports of debates in state constitutional conventions, legal periodicals, newspapers, memoirs, and letters of lawyers and judges. In addition, the Article employs a range of secondary material from the legal and historical fields.

The Article will begin in Part I by describing how judicial comment on the evidence worked in the early nineteenth century, and the reasons why it was considered important. Most American judges followed the English style of an informal, close relationship with the jury. They freely commented on evidence, and appellate courts rarely interfered.

In Part II, the Article turns to the question of how the power was lost. That part first considers the thesis that judicial elections were closely linked to the movement to prohibit comment, and concludes that such a link did not exist except in parts of the South and West. Part II then discusses the distinct legal and social culture of the South and West to help explain the curtailing of judges' power. The Article describes the extraordinary atmosphere of southern and western courtrooms, permeated with rowdiness, violence, insults, and passionate rhetoric from the lawyers. This milieu made it very difficult for a judge to assert control by means of unruffled comment on evidence. The aggressive southern and western legal professions are considered and contrasted with their more traditional northern counterparts.

Part III then builds on this groundwork by describing exactly how change occurred in the southern and western states. That part gives details of the specific legislative and constitutional provisions adopted and the debates surrounding them--debates that were conducted almost exclusively by lawyers and that reflect the cultural factors discussed earlier. Part III also discusses how courts reacted to these legislative and constitutional provisions, and concludes that courts in the end put heavier emphasis on the expensive, formal remedy of new trial.

The conclusion compares our legal and social culture today with that of the South and West before the Civil War. This is a step toward ascertaining what the role of the judge might be today, including whether it is even possible to resurrect judicial comment on evidence.

1. JUDICIAL POWER TO COMMENT ON THE EVIDENCE IN ANTEBELLUM AMERICA

   1. Following in English Footsteps: Informal Control of Juries

      Early American judges understood the influence English judges had over the jury concerning...