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One remedy suggested was that the Court of Appeal should be more ready to correct the verdict of a jury and to correct it in much the same way that it corrected the decision of a Judge. The test was similar, nevertheless in practice the result was very different. In case after case the Court had held that it could not interfere with a jury as readily as with a Judge.

They

One reason was the difficulty of showing the basis of the jury's award. gave no reasons. They found no facts. Their verdict was as inscrutable as the sphinx. So you could not pick holes in it. In cases of personal injury the jury were ignorant. The award was basically a conventional figure: but the jury were not told what that figure was. No wonder they want wrong sometimes. When they did, they would be the first to wish it to be put right.

Their Lordships could not change the principles on which the cases were decided but they could, he thought alter the emphasis. In future this Court would not feel the same hesitation in upsetting an award of damages by a jury. If it was "out of all proportion to the circumstances of the case", that is, if it was far too high or far too low, the Court would set it aside. On setting it aside the Court had power, he thought, to order the fresh assessment to be made by a Judge alone. This could not be done in the old days when there was a right to trial by jury. But now that the mode of trial was a matter of discretion, this Court could, on granting a new trial, order that it be held by a Judge alone. That power was, he thought, contained within the words of Order 58, rule 9 (3), (6).

CAN THE JURY BE GIVEN MORE GUIDANCE?

In lieu of ordering a new trial, the Court could substitute its own figure, but only where the necessary consent was forthcoming under Order 58, rule 10(4). The other remedy suggested was that the jury should be given more guidance. All in all, he was quite satisfied that the present practice should be maintained where the jury were not told of awards in comparable cases. As to the suggestion that the jury should be told of the conventional figures by the Judge being at liberty in his discretion to indicate to them the upper and lower limits of the sum which in his view it would be reasonable to award, such as between £4,000 and £6,000 for the loss of a limb there was little point in having a jury at all. You might as well let the Judge assess the figure himself.

He had come to the conclusion therefore that they must follow the existing practice: and their Lordships could not sanction any departure from it.

The result of it all was: They had come in recent years to realize that the award of damages in personal injury cases was basically a conventional figure derived from experience and from awards in comparable cases. Yet the jury were not allowed to know what that conventional figure was. The Judge knew it. But the jury did not. That was a most material consideration which a Judge must bear in mind when deciding whether or not to order trial by jury. So important was it that the Judge ought not, in a personal injury case, to order trial by jury save in exceptional circumstances. Even when the issue of liability was one fit to be tried by a jury, nevertheless he might think it fit to order that the damages be assessed by a Judge alone.

As far as the present case was concerned, on July 30, 1963, when it was before him, Mr. Justice Roskill exercised his discretion in the light of the considerations then current. He had not the benefit of the three decisions since then, particularly Sims case. Nor, of course, had he the guidance which, his Lordship hoped, was to be found in the present judgment.

The defendants acquiesced in the order for trial by jury for months and months. It was not until the case was just about to come for trial before a jury that they sought to change the mode of trial to Judge alone. It seemed to his Lordship they came too late. He was not disposed in these circumstances to interfere with the order made by the Judge: and all the more so when he thought that, if the jury should go seriously wrong, the Court would not feel the same hesitation as it formerly did in upsetting them. He would, therefore, dismiss the appeal.

LORD JUSTICE SELLERS, LORD JUSTICE PEARSON, LORD JUSTICE DAVIES and LORD JUSTICE DIPLOCK agreed.

Solicitors.-Messrs. Wm. Charles Crocker; Messrs. Thompson, Smith & Puxon,

Colchester.

Mr. RISCASSI. May I submit for the record also, if I may, Senator, one other newspaper clipping on the same subject, having to do with the fact that in England, where the right to a civil jury trial is within

the purview and discretion of the presiding judge, that system is being questioned and the right, the God-given right or the law-given right, to a trial by jury in all civil cases is being sought even there. (The documents referred to follow :)

LONDON LETTER

(By Francis Cowper)

COUNSEL AND JURY

Few factors have so much altered the British Bar and the British legal scene as the almost total disappearance of the jury from civil litigation. In the inequity courts there was no jury tradition, and for centuries counsel and judges threading their way through labyrinths of legal learning and technical terminology lived in a cloistered seclusion of their own creation utterly insulated from the world of ordinary human beings. But in the common law courts the entire atmosphere was different. Into them the great, big, rough, technically untrained outside world burst every day in the person of twelve jurymen, plucked at random and unwillingly from their homes to determine all disputed issues of fact in civil and criminal litigation alike. Their presence transformed the whole face of advocacy. While they were there the courts could never be just cosy little committees of lawyers. The successful advocate had to know how the mind of the ordinary man worked and (yet more important), how his heart worked even if it was only for the purpose of flattering his vanity or befogging his judgment. That meant that the advocate had to be a man of the world, if possible somewhat larger than life, able to talk to the jury as man to man and yet with a compellingly persuasive authority. He had to cultivate the arts of the actor and the auctioneer, and the more roles there were in his repertoire the better his performance. But since the war the civil jury has gone out of fashion and has become a rarity in any but fraud and defamation cases, so that in the common law courts just as much as in the equity courts oratory is out and quiet conversational exchanges between lawyers are the rule. There are no more great forensic gladiators whose feats were followed daily by the press and public alike. The "image" of the Bar has sadly shrunk.

THE APPEAL COURT AND THE JURY

Nobody appears to mind much. Indeed, in the technological temper of the times the most forward-looking progressive seem ready to welcome a Bench and Bar composed entirely of electronic computers and "lie detectors," which would leave as little function for the jury as for the lawyer. But now quite suddenly juries find themselves unexpectedly basking in a bright patch of progressive popularity. This is the sequel to a recent decision of the Court of Appeal on a point of procedure in the case of Ward v. James (1964, 2 W.L.R. 455) an action for damages for serious personal injuries sustained in a road accident. In July, 1963, Mr. Justice Roskill had made an order in chambers that the trial should be before a judge and jury and not, as is now the almost invariable practice in such cases, before a judge alone. Fifteen months later, after the case had actually been set down for hearing, the defendant appealed against the order, asking that the trial should be by judge alone. After a three-day hearing, the court reserved judgment for a month and a half and then dismissed the appeal because the defendant had acquiesced so long in a trial by jury and had ap pealed so late. But in giving judgment Lord Denning took the opportunity to review the whole field of trial by jury in actions for damages in achieving assessibility, uniformity and predictability. He said that it was within the jurisdiction of the Court of Appeal to interfere with a judge's discretion in ordering a trial to be by jury. He also said that a jury's award of damages was not sacrosanct and that if it was either far too high or far too low and out of all proportion to the circumstances of the case, the Court of Appeal could set it aside and order a fresh assessment by a judge alone.

UNEXPECTED CLAMOUR

In the course of his observations Lord Denning paid a perfectly orthodox tribute to the jury as "the bulwark of our liberties" and there seemed nothing in the perfectly sensible principles he laid down to set liberty-loving mobs marching on

the law courts to lynch the judges. But of recent years there has grown up in some quarters a settled habit of nagging the "legal establishment" and carping at the law. Consequently the immediate reaction to the Court of Appeal's decision was a motion in the House of Commons by a hundred of the more congenitally critical Socialist members of Parliament there, affirming the "desirability of the right to a jury being available" and expressing apprehension at "any usurpation of the legislative function by decisions calculated to override the declared intention of Parliament." This attack on the judges by a large body of its supporters considerably embarrassed the government. In the House of Lords, Lord Dilhorne, who was Lord Chancellor in the late Conservative government, questioned its present Lord Chancellor, Lord Gardiner, who replied that the motion "neither required nor received the approval of the government." In the House of Commons the Attorney General, Sir Elwyn Jones, said that, while the government recognized that the present state of the law and practice relating to the assessment of damages was unsatisfactory, a full enquiry would be necessary before amending legislation could be introduced and the Lord Chancellor was considering what form such an enquiry should take. The fact is that nobody really knows whether judges or juries give higher damages. Some say that juries give lower damages because they are middle-class men unaccustomed to "thinking big," while judges as richer men, moving in richer circles, have higher financial standards. Others say that juries give higher damages because they are in touch with current values and rising prices, while judges are old fossils who know nothing of the world around them and whose money values are a quarter of a century out of date. The hundred Socialist members of Parliament think that judges are class-conscious capitalists who give small damages to working class plaintiffs and big damages to the middle and upper classes. The fact is that since both judges and jurors are human beings they work unpredictably on imponderables and intuitions, unlike the computer which is arbitrarily instructed on a limited number of considerations. Another complicating factor is that even the intimidating robed English judges are, as was said long ago, "one-third a common juror beneath the ermine." Nor have they an entirely Olympian indifference to outside atmosphere. Since the controversy started, awards of damages by judges for personal injuries have perceptably risen and soon afterwards Lord Denning in the Court of Appeal in upholding an award of £7,004/7s/4d to a young Jamaican who had lost all the fingers of his right hand in a factory accident remarked, with evident satisfaction, that the figure was far higher than it would have been a few years ago and that the judges do keep pace with the times.

Mr. RISCASSI. Now, selection by lot from the registered voting list will insure a cross-section of the community, with nothing left to chance, as would be in the case of jury selection at random. Now, the second amendment that we propose is rather than have these prospective jurors come in for the observation of the clerk and to fill out their questionnaires at the loss of a day's work, I think that that can be done by mail. That is the system that is used in Connecticut, it is the system that is used in Florida, certainly in Pinellas County, Senator Smathers, because I visited there and inquired.

And there is a saving there, particularly in view of the fact that— there is a saving of time and of money, both.

Senator ERVIN. If you will pardon my interruption, I think that is a very wise suggestion, because this deals with prospective Federal jurors

Mr. RISCASSI. And the districts are large.

Senator ERVIN. And in many cases jurors would have to travel 50, 100, or 150 miles to fill out their questionnaires.

Mr. RISCASSI. Yes, sir.

The last one, in 3296, has to do with the length of service. Now, 5640 was deficient in that it had nothing to say about the length of service: 3296 mentions 30 days. That is on page 12, service as a petit juror for more than 30 calendar days, except when necessary to complete service in a particular case.

Now, the greatest weakness and the reason why, in many jurisdictions, you have your jury panels which finally end up hearing cases, these panels are composed of elderly people who are supplementing their social security income by seeking this service and they get it for the following reasons, but when you send out a questionnaire or by statute or by Federal enactment, you state that someone has to serve 30 days. Unless you guarantee their pay, I submit, and even if you do, I submit, Senator, that that is a hardship on the great majority of the people. That is why we end up with these elderly people in these jury boxes and in the trials of these cases.

The comment that goes along with this amendment reads as follows, that the failure to select prospective jurors by lot, together with insufficient pay and a long term of service, always result in juries that are not a true cross-section of the community. A maximum of 70 calendar days of service, together with adequate pay, would make it difficult for anyone to find an excuse to evade jury service. Excuses are usually offered by the young with family on hardship grounds. It is hard for a judge to refuse them, and the net result is that the jury panels end up overloaded with old, retired pensioners, well meaning but nonetheless not a true cross-section of the community to which a litigant in our courts is entitled.

The State of Florida has a 1-week time limit for petit jury service. Here the system has worked most effectively in this regard. There have been no complaints of difficulty in administration. They do it entirely with a 5-cent stamp and the mail.

Not only that, although title I in this civil rights bill perhaps does not get the scrutiny or the time or will not get the time that titles III, IV, V, VI, or II will get, still title I is as important, if not more important than any of the other sections of this bit of legislation. And we have in this country of ours today an overwhelming amount of jury work. All of our courts are loaded up to the gunwales, and we have to do things that will streamline the procedure and that will give, at the same time, everybody an equal opportunity to serve.

Now, one of the things that is true in Florida is the fact that when anyone serves for a week alone, the presiding judge will keep them there after school in order to finish that case so that those people do not have to serve over the 1-week period. There is no good and adequate reason why any person should have to serve on a jury more than once or twice in a normal lifetime. If everybody is given an opportunity to serve, you will find out that that will be the average and there will be that many that will not have that wonderful pleasure of watching your system at work. The objective should be to make jury service a duty attractive and instructive to all segments.

Senator ERVIN. It is also true, is it not, that any person, no matter how busy, could reasonably be called on by his country to serve as a juror for a week?

Mr. RISCASSI. Yes.

Senator ERVIN. But if a man has a business or a profession and he is called to serve 30 days out of the year, this is a disproportionate sacrifice because it may mean that a lot of other people who owe the same obligation to the country do not serve at all?

Mr. RISCASSI. Yes; and in our Federal system today, unbelievable as it may seem, they have these jury panels that sit for a term, the whole

term of the court, 2, 3, and 4 months. And how, I ask you, can you ever get everybody or give all an opportunity to serve under circumstances such as that? The limit must be named. It should not be more than 1 week, because no one can then claim a hardship, and the butcher, the baker, the drugstore man, the garage man, everybody should be given an opportunity to participate.

Senator ERVIN. Do you not agree with me in the thought that one of the wisest things about our system of administration of justice is that we have the jury system and we have laymen from the body of the citizenship to assist in the administration of justice?

Mr. RISCASSI. Yes; that is the most wonderful part of our jury system. Only the trouble is that at the present time, in a great number of the States, the people that come in and sit as jurors are cynics and they deride the system rather than being boosters of the jury system. That is something to be really alarmed at.

In keeping with that, I want to close by stating that this committee, if it is within its power, should also give attention to the use of 6man juries on a compulsory basis in civil cases, rather than the use of 12-man juries. Now, there is no good and adequate reason why these Federal courts trying civil cases, a lot of which revolve around who was at fault at an intersection or whether or not a banana peel lay on a sidewalk for an hour or a week, things of that sort, why a 6-man jury would not do as well as a 12-man jury. That goes for the larger cases, also.

The expense that is involved here, you bump the pay up to $20 a day; you are giving them $17 a night if they lay over. You give them transportation both ways, you have increased the three categories and it is worthwhile. I think you could have a tremendous savings, both in time--because when you pass these exhibits around in the trial of a case and you have 6 instead of 12 looking at it, and when they file out, where a question of law is being argued, as happens many times in the trial of a case and the judge wants the argument in the absence of the jury, all of these factors which are so important today, so that we can get away from this hue and cry in a lot of quarters that we should have a compensation system for the trial of civil cases, would be done away with if we used a six-man jury, if we used a shorter term so we could get away from cynics, who, No. 1, abuse the system and deride the system, and if we use a cross section in the inception.

Senator, if there is anything I can tell you after 33 years practicing generally as a smalltown practitioner, it is this, that the cross-section, that the selection by lot in the inception is most important. This 5640, which was the bill that passed in the House, which called for a jury commissioner to select the original panel subject to directions to be given him by the presiding judge, still gets the human element in there, which gives you a jury which, in the final analysis, can only be the reflection of the selector. And if you are going to do it so that it is fair and equally applied to everybody so that everybody must serve and learn that duty, No. 1, it has to be by lot from the registration list, which I think is about as fair a system as you could get, particularly when you bring it up to date in the Southern States. And the bill makes provision for the chief judge getting names of minority groups if they are not fairly represented at the present time.

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