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The costs of juries
November-December 2009 No area of court operations seems to be safe from the cutting block during the current economic crisis, including jury operations. We hear of courts reducing juror fees, suspending jury trials, reducing the size of juries, and eliminating paid parking and other amenities previously offered to jurors—most of which are actually a cost-shifting strategy, rather than a cost-reducing strategy. Jurors and litigants ultimately end up absorbing those costs. But even for courts, these strategies are immensely short-sighted. They reduce actual costs by only negligible amounts, and they can be counter-productive by introducing even greater inefficiencies in court operations. In the long run, they undermine the very institution of the jury trial by making the jury a less effective and representative adjudicatory body and depriving the justice system of its most effective mechanism for securing public legitimacy. Instead of focusing on ways to shift the costs of jury trials to jurors and litigants, courts should focus on improving the effectiveness of jury operations. There is no question that jury trials are the single most expensive event that takes place in a courtroom. In addition to juror fees, mileage reimbursements, and assorted juror amenities, jury trials typically involve a much larger assembly of court staff, lawyers, and witnesses than is needed in other court proceedings. But in the larger context, jury trials comprise such a small proportion of overall case dispositions that their contribution to total operational costs is negligible. To a large extent, this is true because much of the total cost of jury operations is heavily subsidized by the jurors themselves, their employers, their families, and their communities. For example, recent studies by the National Center for State Courts estimate that the average cost per juror reporting for service ranges from $800 to $1000, of which only $25 to $50 are incurred by the court for juror fees, mileage reimbursement, and administrative costs. The rest of those costs are incurred by the jurors in the form of lost income and unreimbursed out-of-pocket expenses, by their employers in the form of lost wages or salaries paid for employees while on jury service, and lost productivity while those employees are not at work. Those reflect just the easily quantifiable monetary costs. There are also less obvious costs, such as lost opportunity costs incurred by jurors who are not employed when they cannot participate in their regular activities (education, childcare, recreation, community service). Reduced jury sizes, although not strictly a cost-shifting strategy, have been shown to reduce the demographic and attitudinal representativeness of juries and to decrease the thoroughness and accuracy of jury deliberations, resulting in more erroneous verdicts and more variable damage awards in civil cases. Of course, there is also the loss to the courts of public trust and confidence as jurors are treated with less respect and dignity than in the past. Shifting costs to jurors is fundamentally unfair to jurors, but it is also counter-productive to court operations by reducing jury system efficiency. Take, for example, the impact of reductions in the amount of the daily juror fee. Currently, courts that pay jurors a flat daily rate for jury service average $22 per day, while courts that pay a graduated rate average $32. (A graduated juror fee system pays little or no fee on the first day(s) of service, but a higher rate on subsequent days or upon being sworn as a trial juror when comparatively fewer jurors report). Research shows a direct relationship between the amount of the juror fee and the rate at which jurors are excused for hardship, with courts that pay jurors less than the national average experiencing excusal rates 35 percent higher than courts that pay more than the national average. Thus, courts have to summon proportionately more jurors—incurring more printing, postage, and administrative costs in the process—to secure an equivalent number of jurors for service. Nor does simply suspending jury trials offer a more effective strategy. A firm trial date has been the hallmark of effective case management for decades. Suspending jury trials, therefore, tends to increase backlogs, lengthen the time between filing and disposition, and increase the total costs to dispose of cases. A far more productive strategy for reducing costs in jury operations involves streamlining the jury system to eliminate existing inefficiencies, both in the jury system itself and in the pretrial management of cases. This can be accomplished by improving juror utilization such that the court calls in only the number of jurors necessary to select juries. That is, panel sizes must be closely tailored to the likely number of jurors needed to select a jury and the court must use effective pretrial management policies to discourage day-of-trial settlements, plea agreements, and continuances. Once the court has a solid understanding of how many jurors are actually needed, it can synchronize its summoning rate with the court’s actual need for jurors. This reduces the printing, postage, and administrative costs associated with mailing and processing excessive numbers of jury summonses and qualification questionnaires. Finally, many practices are effective for reducing the number of undeliverable summonses, non-response and failure-to-appear jurors, and jurors excused for hardship. These practices result in increased jury yields so that the court expends less effort to secure a greater number of qualified and available jurors for service. To the extent that improvements in jury operations are dependent on improvements in pretrial management practices, these strategies can also have the benefit of improving overall court efficiency. But by far, the most important benefit to be gained by focusing on improving the jury system rather than shifting costs is the impact on public perceptions of the justice system. Through jurors’ own eyes and experiences, the public sees how courts dispose of the cases before them—either fairly and effectively, or ineffectively (which is by definition unfair). In the long run, the savings generated by short term reductions in jury operations cannot compensate for the potential loss of public trust and confidence that accompanies an ineffective justice system. |
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