Where Have All the Gunslingers Gone?

cowboy hat and gun

by Michael Pezzulli¹

In the United States, one of the great defining aspects of this country is the constitutional right to a jury trial. Nearly all-civil jury trials and ninety percent of criminal jury trials on the planet take place in the United States.²

The most stunning and successful experiment in direct popular sovereignty in all history is the American jury. Properly constrained by its duty to follow the law, the requirement of jury unanimity, and evidentiary rules, the American jury has served the republic well for over two hundred years. It is the New England town meeting writ large. It is as American as rock ‘n’ roll.

The American jury “must rank as a daring effort in human arrangement to work out a solution to the tensions between law and equity and anarchy. No other legal institution sheds greater insight into the character of American justice. Indeed, as an instrument of justice, the civil jury is, quite simply, the best we have. [T]he greatest value of the jury is its ability to decide cases correctly.” We place upon juries no less a task than discovering and declaring the truth in each case. In virtually every instance, these twelve men and women, good and true, rise to the task, finding the facts and applying the law as they, in their collective vision, see fit.

In a very real sense, therefore, a jury verdict actually embodies our concept of “justice.” Jurors bring their good sense and practical knowledge into our courts. Reciprocally, judicial standards and a respect for justice flow out to the community. The acceptability and moral authority of the justice provided in our courts rest in large part on the presence of the jury. It is through this process, in which the jury applies rules formulated in light of common experience to the facts of each case, that we deliver the best justice our society knows how to provide. The jury system proves the wisdom of the Founders in their utilization of direct democracy to temper the potential excesses of the only unelected branch of government.

According to one scholar, “the jury achieves symbolically what cannot be achieved practically–the presence of the entire populace at every trial.” Through the jury, we place the decisions of justice where they *70 rightly belong in a democratic society: in the hands of the governed.

The very structural bedrock of our constitutional form of government confirms the centrality of the jury’s role. According to Article III, “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Further, the Constitution provides but a single limit on Congress’s broad powers to establish and disestablish inferior courts, expand and trim their jurisdiction, and move jurisdiction from one such court to another: the American jury. The Constitution states that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury … ” Additionally, the Constitution demands that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved … ”. As Professor Akhil Amar of Yale University reminds us, the words “shall” and “all” in Article III once “[m]eant what they said.”

The People’s Right to Govern through the Jury

The Founders’ jury-and-venue rules have deep roots. While jury trials protected the defendant’s rights, they also ensured the public’s participation in the judiciary branch. In effect, the people themselves had a right to govern through the jury. As Professor Amar explains,

“[E]ach of the three branches of the federal government featured a bicameral balance. In the legislature, members of Congress’s lower house–more numerous than senators, more localist, with shorter terms of office and more direct links to the electorate–would counterbalance the members of the upper house. In the executive branch, local citizen militias would counterbalance the central government’s professional soldiers, and local citizen grand jurors would counterbalance the central government’s professional prosecutors. So, too, within the judiciary, trial jurors would counterbalance trial judges. So it was, Professor Amar concludes, that “a criminal judge sitting without a criminal jury was simply not a duly constituted federal court capable of trying cases, just as the Senate sitting without the House was not a duly constituted federal legislature capable of enacting statutes.”

These constitutional commands, moreover, necessarily require the existence of jury trial courts to give them effect. Thus, the American jury, that most vital expression of direct democracy extant in America today, functions as well as a practical and robust limitation on congressional power. It is as crucial a feature of the separation of powers among the Congress (Article I), the President (Article II), and the Judiciary (Article III) as is the Supreme Court. Indeed, within her proper fact–finding sphere, an American juror is a constitutional officer–the constitutional equal of the President, a Senator or Representative, or the Chief Justice of the United States.

One could scarcely imagine that the Founders would have created a system of courts with appointed judges were it not for the assurance that the jury system would remain. In a government “of the people,” the justice of the many cannot be left to the judgment of the few. Nothing is more inimical to the essence of democracy than the notion that government can be left to elected politicians and appointed judges. As Alexis de Tocqueville put it so elegantly, “[t]he jury system . . . [is] as direct and as extreme a consequence of the sovereignty of the people as universal suffrage.” Like all government institutions, our courts draw their authority from the will of the people to be governed. The law that emerges from these courts provides the threads from which our freedom is woven. Yet while liberty flourishes through the rule of law, “there can be no universal respect for law unless all Americans feel” the law is theirs. Through the jury, the citizenry partakes in the execution of the nation’s laws and, in that way, each citizen can claim rightly that the law belongs partly to him or her.³

The Trial Lawyer’s Role in an Effective Jury Trial

While we proudly tout the jury system in the United States as the best in the world, we tend to forget that the Constitutional right to an effective jury trial depends on more than the judge and jury. An effective jury trial is also dependent on trial lawyers tasked with zealously and effectively representing their clients at trial. Their job is not to parade around showing how good they are, but to skillfully blend into the background and project the most truthful and persuasive spin on their client’s position throughout the trial.

There’s an old story about Clarence Darrow.⁴ After a particularly tough trial he handily won, one of the jurors was heard to say, “He’s not so good; he just had all of the facts on his side.” That is precisely how a good trial lawyer wants the jury to feel – not that the lawyer is great, but that his client and his case are on the right side of the dispute.

Trial Lawyers and Gunslingers

So, what the heck is a trial lawyer? And should we be concerned that genuine trial lawyers seem to be fading into the sunset?

In the 1800s, trial lawyers were also frequently gunslingers⁵ and used to actually slap leather as part of their job: Albert Fall of New Mexico, 1895; Henry Ferris in Colorado, 1873; and Albert Jennings Fountain in Texas, 1896. Albert Jennings Fountain killed B.F. Williams on Dec. 7, 1870, then turned around and defended Billy the Kid in his first trial in Mesilla, NM.⁶ Today, the trial lawyer is the key to the preservation of our jury system and to an effective jury trial. The judge is the umpire, calling balls and strikes. The jury is the judge of the facts; and the trial lawyer is the conductor. Without an effective conductor, chances are, you are looking at a train wreck.

These days, litigation lawyers like to call themselves “litigators” and not “trial lawyers.” There is a reason for this: many of these so-called litigators have never picked a jury, never tried a case, and never “sweated” a jury deliberation. This is a serious problem for clients in civil trials. But in this age of the vanishing trial, how can the young lawyers of today develop the kind of art and skill their elders wield so well in the courtroom?

Some of the best of the old breed are pessimistic about the prospects. Others say cowboys with six-guns and lassos are no longer needed in an age of mechanized cattle ranching. “There won’t be any problem getting the next generation of litigators,” says Houston-based antitrust litigator David Beck, co-founder of Beck Redden & Secrest. “The problem is getting the next generation of trial lawyers.”

When Beck was president of the American College of Trial Lawyers in 2006-07, he appointed a task force to look at what can be done to reverse the consequences of the vanishing trial. Many have heard stories about litigators making partner without having tried a case — journeymen carpenters who never drove a nail. Some retire without ever knowing the visceral taste of a jury’s verdict.⁷

Why “Litigator” Versus “Trial Lawyer” Matters in Civil Litigation

This drift to litigators over trial lawyers is a serious problem for any client with a civil case. When you get sued or have to sue, you must always be prepared to pick a jury and let 12 “tried and true” decide the case. Regardless of the forum in which a matter is ultimately resolved, a lack of jury trial experience can have a significant, negative impact on a lawyer’s ability to act in the client’s best interest. When lawyers cease to view going to trial as a viable alternative, settlement becomes the most likely option. Whose job is it to advocate for a client whose case is settled for less favorable terms than a judge or jury might have awarded? Or to protect the defendant who is hounded into settling for nuisance value, but could have won a trial outright? Are defense costs saved always the same as dollars paid to a plaintiff in a settlement? What about the value of setting a precedent for a zero-liability verdict?

The client is potentially harmed if forced to hire new, experienced trial counsel when the matter is set for trial. And the client can also be harmed if the case is tried to the jury by an inexperienced litigator. A lack of trial experience has the potential to impact nearly every decision made by the litigator. Fear can be a powerful motivator for lawyers who already possess well-developed powers of rationalization.

And a jury trial can be a scary place for litigators. Without jury trial experience, how would a litigator know what discovery to conduct to prepare a case for a jury? Or how much discovery to conduct? Without a clear understanding of the evidence required to prepare for an efficient, compelling trial, the litigator is more likely to engage in ‘extensive, expensive, and unfocused discovery.” [8]

The problem does not end there. Even when settling a civil case, a lack of trial experience impacts a client’s position negatively. “In particular, there are at least three important ways that a litigator lacking jury trial experience is at a disadvantage in the settlement arena: (1) making accurate jury-value predictions, (2) objectively assessing a settlement offer, and (3) bargaining for a better settlement.” [9]

At the end of the day, every client with a civil case deserves to know if their attorneys have little or no jury trial experience. As the client, you need to know that many lawyers are litigators and not trial lawyers. You must never be bashful in asking the relevant questions.Ask your litigator/trial lawyer if he or she has ever tried any jury trials – and if so, how many?

The People’s Right to Govern through the Jury

The Trial Lawyer’s Role in an Effective Jury Trial

Trial Lawyers and Gunslingers

Why “Litigator” Versus “Trial Lawyer” Matters in Civil Litigation

Other Questions to Ask When Selecting a Civil Trial Attorney