Discernible Differences: A Survey of Civil Jury Demands

Under Washington State's historic default rules, civil jury consisted of twelve persons unless both parties expressly consented to a number.1 Washington Legislature reversed this presumption in 1972.2 Washington's civil jury now consists of six persons, unless one of parties files a specific demand for twelve.3 It appears, however, that litigants have refused to embrace this change; a survey of 2883 civil jury demands filed in King County Superior Court in 2009 to 2010 demonstrates that litigants overwhelmingly prefer twelve-member juries. This paper presents this survey's results4 and explores what they might mean, positing seven considerations that may explain litigants' shared preference for traditional juries. I hope that survey and accompanying exploration will remind us of great purposes that gave rise to jury in first place.5 I. BACKGROUND Until 1972, Washington's lawmakers found particular value in twelve-person jury. When first Legislative Assembly of Territory of Washington instituted civil jury in 1854, it declared: The jury shall consist of twelve persons, unless parties consent to a less number. parties may consent to any number, not less than three, and such consent shall be entered by clerk minutes of trial.6 In other words, civil litigants could agree to have their case heard by fewer than twelve jurors, but court provided a smaller jury only if opposing parties expressly consented and their consent was properly documented. framers of Washington State Constitution also recognized value of twelve-member jury. When they enshrined civil jury right in Declaration of Rights, they required special action - a legislative enactment - to decrease jury size.7 While has scarcely been a time when elimination or reformation of civil jury system has been far from minds of its critics,8 jury detractors focused particularly negative attention civil jury beginning in late 1950s.9 Critics blamed jury for the pressing problem of court congestion and litigation delay10 and argued that civil jury was an expensive luxury11 society could ill afford. Studies were conducted, one of which estimated that a bench trial was on average, 40 to 50 percent less time-consuming than a jury trial.12 After jury detractors successfully depicted jury cases as the greater time-consumers and ... more expensive type of trial,13 even jury supporters began to ask, [w]hat may be done to economize time and money in trial of lawsuits?14 In response to this narrow question, a growing number of legal commentators recommended that civil jury should be reduced from twelve members to either five or six. They argued that twelvemember jury was not a necessary component of justice, but merely an accident15 of history.16 Certain proponents then conducted limited studies of six-member civil juries to test their theories in state courts.17 According to these researchers, a smaller jury would provide all benefits of a larger jury, while conserving time, saving money and reducing court congestion.18 After U.S. Supreme Court affirmed these studies in Sixth Amendment context, declaring that there was discernible difference between results reached by two different-sized juries,19 it signaled jury's widespread diminishment.20 Two years after Williams v. Florida2^ was decided, Washington State Legislature voted to diminish civil jury without much thought. There was some limited debate in Senate, but it centered time of service.22 There was no debate and only one question in House of Representatives: Representative Martinis23 asked, Axel,24 is there any provision in this bill that allows computer selection of a jury?25 Representative Julin replied, The answer to your question is no, Mr. Martinis. We did not have time to perfect that particular amendment at this time. …