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By: Donald J. WInder

Winder & Counsel, PC

Salt Lake City, UT

There are two principal ways for all citizens to participate in our democracy at the voting booth and in a jury box. Thomas Jefferson considered [T]rial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution. Alexis de Tocqueville said, The jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well. Supreme Court Justice Byron White, in Duncan v. Louisiana (1967), wrote: The jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. All of these scholars agree the right to jury trial, as well as the right to vote, grants to the common man and woman the ability to determine issues in a democratic way.

In connection with health care reform, much has also been said and written about tort reform and tort reform legislation has been proposed. Unfortunately, claims have been made that runaway juries hand huge awards to frivolous plaintiffs.

Distraught over unsupported claims, I have tested the hypothesis. Court records are public. My firm examined all medical malpractice filings in Salt Lake County from January 1, 1999 through December 31, 2002. There were 386 filings, out of which, by 2006, 368 of those cases had resolved. Almost all cases were dismissed. Due to confidentiality concerns, well never know how many were settled or for how much. However, we do know out of all these cases, only 9 resulted in jury verdicts. Six of those verdicts were no cause of action in favor of the defendant or an award of zero dollars to the plaintiff. One was marked judgment-appeal dismissed with prejudice. Only two cases ended in awards to the plaintiff. One case awarded $192,277.80 and the other awarded $4,203.25 to the plaintiffs. Empirical data simply does not support the notion of runaway juries.

Those who attack jury verdicts are attacking much more. When you attack jury verdicts-when you say juries are out of control-youre really attacking jurors themselves. Youre saying that people like you and me, all across this Country, dont have the judgment, public spirit and plain common sense to make good decisions collectively. And if you say you cant trust us on a jury, then the next step will be to say you cant trust us in the voting booth.

Runaway juries are a myth. It doesnt happen in Utah, and it doesnt happen in the vast majority of the Nation. I know the results are the same in Wyoming, because another study was done there, returning similar results. People need to know the way things really are. The myth of the runaway jury has got to stop. When you go before a jury, all that matters is the merits of your case.

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