The New ABA Jury Trial Standards: "Innovations" Go Mainstream?

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Stephan Landsman, professor, DePaul University College of Law and reporter for the ABA Project

G. Thomas Munsterman, Director of the Center for Jury Studies, National Center for State Courts and ABA Project member

B. Michael Dann, retired Arizona Superior Court judge and ABA Project member

Nancy Marder, professor, Chicago-Kent College of Law

Hon. Glenn Ansardi, Louisiana State Representative

David McCord: Our panel this afternoon is on the American Bar Association's New Jury Trial Standards & Principles. This was one of the major initiatives of the American fury Project of the American Bar Association, spearheaded by Robert Grey, the current president of the ABA. We're fortunate to have three of the members of the Project that formulated Principles and Standards, one law professor who's been cast in the role of critic or gadfly, and Representative Glenn Ansardi, who is trying to spearhead reforms of the jury through the Louisiana Legislature.

Stephan Landsman: I should begin with a disclaimer. Although I was the reporter to the American Jury Project, what I have to say is strictly my own opinion, and certainly shouldn't be taken as ABA policy.

The first question I've been asked to consider is why did the ABA, which already had three sets of jury Standards, decide in the summer of 2004 to draft some new ones? Well, first, at least two of those sets, one from the Judicial Administration Division and the other from the Criminal Justice section, were more than 10 years old, and a lot has happened with respect to jury practice in that time. second, the very fact that there were three sets of Standards, and that they overlapped and in some places conflicted, was disturbing to anyone who thought the ABA ought to have a rational single policy on this matter.

Finally, and this is by far the most important, when Robert Grey became president of the American Bar Association in August of 2004 he viewed the jury question as one of critical importance. In a letter he wrote on October 15, 2004, on the eve of the national conference to discuss our draft Principles, he said, "If we are to sustain America's respect for the jury system, the legal profession must take steps to move the jury experience into the 21st century." To do that, Robert created two groups.

One was the American Jury Project, whose job it was to write a single new unified set of Principles and Standards for the American Bar Association. The second was the Commission on the American Jury. Its mission is to promote jury service, to promote jury trials, and to promote, we hope, our new rules. Because of the short duration of the bar presidency, Robert asked the American Jury Project to finish drafting before February of 2005. We did so. The new Principles and Standards were presented to the ABA House of Delegates at its MidYear Meeting in Salt Lake City in February, and they were approved.

The story of creation seems to me to carry several important lessons as background to what we'll be talking about. First, the bar has clearly wedded itself ever more closely to the idea of jury trial. It has connected itself, its thinking, its energy, its promotion to the notion of the jury trial. second, in part, the effort is in response to the ABA's growing awareness about vanishing trials.

Concern about vanishing trials and concern about the technique, technology, quality, and value of the jury trial in the United States are connected. The rules we've drafted are not a once-and-forever thing. They recognize that change takes place with respect to jury practice. The preamble says: "The [ABA] recognizes the legal community's ongoing need to refine and improve jury practice.... It is anticipated that over the course of the next decade jury practice will improve so that the principles set forth will have to be updated..." Our notion is we're going to be in this business for a while. It's going to go somewhere; we have not spoken the last word, but rather now recognize that change is appropriate and necessary, a part of the process of keeping vivid and effective the jury trial. …