Alabama Litigation Review : North Alabama Personal Injury Lawyer & Attorney : Jeff Blackwell : Hornsby, Watson, Hornsby, Blackwell & McKown Law Firm : Commercial Litigation, Workers' Compensation : Huntsville, Decatur, Athens

Does the number of jurors on a panel matter?  Does it affect the fairness of the panel in deciding cases?  Moreover, does justice require a unanimous verdict?  Or, asked another way, does justice require that one lone dissenter prevent a jury panel from deciding a case?  These questions have long been debated by legal scholars.  Jury practices vary between different jurisdictions and these questions are not just ones for theoretical debate.  Instead, these questions present an opportunity to discuss our court system and how it will continue to operate in the best manner to administer justice fairly in our community.

Yesterday, the New York Times published an opinion piece on the budget crisis facing state courts throughout the United States.  I have written about Alabama's budget problems on several prior occasions.  I certainly would not advocate altering our jury system simply based on cost.  Justice is too important.  However, if the ends of justice could just as equally be obtained with a 6 person panel as opposed to a 12 person panel, then the issue is one that should be considered.  So, it's an interesting debate.

Recently, the Alabama Association for Justice (AAJ) asked me to write a short statement on the issue.  My memo to the AAJ is too lengthy to include here in its entirety.  But, I did find some interesting statistics and research quotes to get a debate started.  To begin, fixing the number of jurors at 12 is largely traditional and dates from medieval times.  In Alabama, that number appears to have been simply accepted as the correct number with little or no thought.  However, in the 1970's, the U.S. Supreme Court addressed the issue and held that 6 member juries were valid under the U.S. Constitution.  Specifically, the Supreme Court held that

we conclude that a jury of six satisfies the Seventh Amendment's guarantee of trial by a jury in civil cases.

While most states have continued to require 12 member juries for felony cases, this is not the case for civil juries.  By 2004, only 25 states continued to require 12 member juries for civil cases in their general jurisdiction courts.

A separate issue involves the requirement that all jurors be unanimous for the jury to reach a verdict.  We have all heard about trials where one lone person disagreed with all the other jurors, resulting in a mistrial.  Should there be a procedure that allows the jury to reach a decision based on less than a unanimous verdict?  I found a 2006 law review article that addressed this issue:

The unanimity standard, however, has significantly eroded for verdicts in civil cases.  Federal juries must be unanimous, but only eighteen states require unanimity and another three accept a non-unanimous verdict after six hours of deliberation.  The remaining states permit super-majorities of between two-thirds and five-sixths in civil cases.

The statistics I pulled on jury size and unanimity are now a few years old.  It is likely that they have changed.  However, the question remains - Would a change in jury size or the unanimity requirement impact the interests of justice?  If the ends of justice are still served by reducing the jury size or allowing for a verdict over a lone holdout, then it is certainly an issue to consider.  The court system would achieve a greater efficiency in moving cases and reducing costs if the standards were relaxed.  When you raise the topic with most attorneys, they immediately have a strong reaction either positively or negatively.  I would love to hear comments from both lawyers and non-lawyers on this important right that makes our justice system so special.

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Alabama's courts face a huge crisis that threatens the administration of justice in our state.  This crisis is not the fault of those running our court system.  In fact, these employees have worked very hard to keep the courthouse doors open despite having very few resources to do their jobs.  The administration of justice is one of the most vital functions of government.  Yet, the Alabama legislature and many other state legislatures chronically underfund the system.

Because of this underfunding, Alabama Chief Justice Sue Bell Cobb issued an Administrative Order in April allowing individual courts the option of closing on Friday.  The Chief Justice's Order also allowed local courts the option of cancelling jury trial weeks.  Here, in Madison County, our local Judges have worked very hard to keep the courthouse running.

Despite their efforts, the system statewide faces devastating lay-offs by the end of this month.  According to an article in The Birmingham News, these lay-offs will cause about 1/3 of the remaining employees in the court clerks' offices around the state to lose their jobs.  That is "remaining" employees.  This is not the first round of lay-offs.  Instead, it is a lay-off of even more employees from an already understaffed system.

A recent article from The National Law Journal puts the crisis in perspective.  According to the article:

All told, too many of our judiciaries receive as little as 1% or less of the state budget pie and none more than 3%. In other words, the entire third co-equal branch of government receives, on average, less than some individual executive departments.

You know the crisis in Alabama is especially bad when the same article begins by citing the following example from our state:

When you call a certain family court in Alabama you get a prerecorded message at the courthouse apologizing that no one can take your call. It's not the weekend and it's not off-hours. It's two o'clock in the afternoon on a Tuesday and, as the message explains, budget reductions from the statehouse mean there is no money to staff the line.

This is a family court, where matters at the core of our lives are decided. Marriages are concluded, families are divided and, perhaps most importantly, children are considered. That unanswered call is from a battered spouse trying to get a protection order. It's a parent trying to get information about a custody hearing.

Today, the Huffington Post also published an article on the nationwide crisis facing our state judicial systems.  That article discusses a case in another state that has been pending 10 years without a trial.

Our court system is a vital, necessary part of our government.  The system has functioned with far fewer resources than other government agencies, for years.  If we care about a system of justice that operates for all our citizens, we must insist that the court system receives a fair share of necessary funding at every level.

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First, let me say that this entry is not meant as a criticism of Alabama's judicial system.  In my experience, the vast majority of our judges and court personnel are deeply dedicated to providing a fair and efficient system of justice despite increasingly limited resources.  I am simply writing to discuss three current ideas aimed at improving our system.  What are these ideas?

1. ELECT JUDGES THROUGH NON-PARTISAN RACES
2. MODIFY ALABAMA'S CURRENT TWO-TIER SYSTEM OF TRIAL COURTS
3. ELECT ASSOCIATE JUSTICES OF THE ALABAMA SUPREME COURT BY DISTRICT

The topic of non-partisan judicial races has been a frequent issue before our legislature in the last few years.  A bill to make such elections non-partisan has been introduced yearly since 2004.  Yet, each year political moves seem to trump real debate.  Do we really want judges who must worry about partisan politics?  Asked another way, do we want to risk electing the most partisan and political people as judges?  Or, do we want to elect the people most qualified to listen and apply the law without agenda?  In 2007, Birmingham attorney Thomas Wells (who recently completed a term as President of The American Bar Association) wrote an article concerning our current system for The Birmingham News.  While Wells favors a pure merit selection system for judges, his article notes many of the problems with our current, highly partisan, method of electing judges.

In her recent State of the Judiciary address, Chief Justice Cobb mentioned Alabama's two-tier system of trial courts.  Basically, under our two-tier system, small cases are often handled in the District Court.  Larger civil cases and other matters are handled by the Circuit Court.  However, in many situations, the losing party in District Court can simply appeal to Circuit Court and have a second chance to win their case from the beginning.  What does a decision mean if the loser can simply start fresh in a new court?  Is it efficient to allow a second, new and full, trial process without consideration of the earlier decision?  At present, many of our courts face a crisis of too few resources and too few judges.  I have written previously about the funding crisis in our courts as well as the lack of Circuit Judges in Madison County.  Modifying our system to reduce this unnecessary overlap would certainly help our courts.

Finally, Alabama voters presently elect the Chief Justice of our Supreme Court as well as all 8 associate justices in statewide elections.  On several occasions, proposals have been made to elect the 8 associate justices by district.  Does our current system allow a candidate to neglect certain areas of the state and focus on major media areas when running for office?  Does it allow a candidate with very little practical experience simply to run an advertising campaign statewide?  By focusing on districts, it would seem more likely that the successful candidate had developed a reputation for quality legal skills within their local community.  It might lessen the ability of less qualified candidates to gain election through mass advertising efforts aimed simply at building name recognition.  Moreover, it could provide local courts in that district with a specific justice who could respond to emergency issues.

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Yesterday, Times Daily writer Dennis Sherer addressed the looming budget cuts again facing Alabama's judicial system.  His column, Courts Face '10 Budget Cuts, paints a true and troubling picture of the financial problem at hand.

As Dennis noted, just a few years ago, the Office of Courts had to suspend jury trials temporarily due to a lack of state funding.  As a result of continued funding problems, the judicial system has already scaled back to the bare minimum necessary simply to keep open its doors.  Another issue created by this long-term lack of proper funding is that growing counties, like Madison County, no longer have enough Judges even to serve the local population.  In an earlier entry, I noted the special problems facing Madison County with too few Judges.  According to a recent New York Times editorial, other states now face similar funding problems.

Any additional funding cuts would severely threaten an already overburdened system.  I have often heard the phrase "justice delayed is justice denied."  In reality, the citizens of our community who most need the legal protections of our judicial system are also the ones who pay the heaviest price when that justice is not delivered.

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Within the last few weeks, several articles and commentaries have highlighted the slow pace in filling numerous vacancies in our Federal Courts.  A recent article in Slate titled "The Bench in Purgatory" as well as a piece in the Wall Street Journal Law Blog titled "Blame Game:  On Obama's Judicial and U.S. Attorney Nominees" have addressed the crisis presented by having too few Judges on a Federal level.

Here, at home in Alabama, Madison County faces a similar crisis. We simply have far too few Judges for a metropolitan area with our growing population. In her 2009 State of The Judiciary Address, Alabama Chief Justice Sue Bell Cobb noted this significant problem in outlining her requests to the Alabama Legislature:

Madison County currently has the highest caseload per judge in the state. With the upcoming base re-alignment and closure the county is expected to continue to grow. Forty-two active judges and 26 retired judges have been assigned to take cases to help alleviate the state's largest caseload in our fourth largest county. Madison has not had an additional judgeship added in over twenty-five years.

Our Chief Justice should be applauded for working tirelessly to keep our local courts running.  Also, many excellent Judges from other counties in Alabama have volunteered their time to help by handling cases filed in Madison County. Earlier this year, I tried a week-long jury trial in front of a Birmingham Judge who sat aside her own busy docket in Jefferson County to spend the week in Huntsville.

It is difficult to explain to your client that he will most likely not receive a trial date any time in the near future because Alabama has not provided Madison County with a sufficient number of Judges. Those Judges from other counties who have volunteered to help at the request of Alabama's Chief Justice must balance their own busy dockets with the extra needs of Madison County. 

This crisis should be a legislative priority. It is time for the Alabama legislature to act and provide the support needed to administer justice in one of the most populous and fastest growing counties in Alabama.

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