When the American Jury first came to fruition, it wasn’t perfect. Most people were excluded from jury service and the process of conviction was not procedurally or substantively fair. However, as marginalized groups throughout history began fighting for their rights – slowly the American jury became more inclusive. We had hoped inclusivity would no doubt lead to fair trials since a jury of peers would be able to consider the defendant’s perspective, and thus be able to determine if what they did was wrong by applying our shared societal and legal standards.
But alas, where capitalism is involved, fairness and equity diminish. While capitalism used to be a mere economic function, it has seeped into every sector of American life including our judicial system. The more private resources an individual has, the better the chance for success. And mirroring the competitive nature of capitalism, litigants are now forced to compete with their private resources to achieve their desired verdict.
In what ways can private resources advantage a litigant?
(1) Attorneys. The average cost of a criminal defense lawyer is $8,000. For a civil case, Smaller firms or less experienced attorneys will charge $100-$300 per hour, while larger, more powerful firms with in-demand attorneys may charge as much as $500 per hour. While there are public defendants and attorneys that work on a contingency fee, both of those options are not optimal for several reasons. Public defenders are usually overworked and do not perform as well as private attorneys. And attorneys working on a contingency fee basisonly take cases that they expect will have a huge payout, if your case isn’t a winner, you most likely will not be taken up as a client.
(2) Jury consultants. Jury consultants specialize in granting a litigant the most favorable jury to their case by utilizing jury science. How much does the assistance of a jury consultant cost? On average, $250 per hour.
(3) Mock Trials. Litigants can run a full mock trial with the facts of their case to see if it would be worth it to take the case to court or settle. Most plaintiffs cannot afford this as it comes out to be about $12,000-20,000.
(4) Expert Witnesses. Expert witnesses play a very important role in jury trials. They tend to explain complex issues in a persuasive way, swaying juries to think about the evidence in favor of whoever is paying them. Experts have become so integral to cases that litigants engage in a “Battle of the Experts”, essentially trying to throw as much money as they can to have more and better experts than their opponents. After compiling expert witness fee datafrom more than 35,000 cases, it has been determined that the average rate for initial case reviews for all expert witnesses is $356/hour, the average rate for deposition appearances is $448/hour, and the average rate for trial testimony is $478/hour.
How does this relate to juries? Well, the Sixth Amendment guarantees that those accused of a crime be tried by a local, impartial jury. If we want fair and impartial juries for all Americans, we must admit that allowing this extreme variance of private resources that can effectively make or break a trial, is a problem. With the current model, juries can essentially be bought by whoever has the most resources. If you are a wealthy litigant, you can filter out the jury to your preferred jurors, manipulate juries with fancy experts, and even predict the outcome of the trial before it happens.
My suggestion would be to either have a monetary cap on external resources for trials based on your opposing litigant’s financial ability or require each litigant to disclose to the jury how much they spent on external resources for the trial. Of course, these suggestions are considered quite radical but with the growing inequality in our court systems where justice is supposed to prevail over all else – I would argue a radical change is necessary.
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