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Jury Verdicts Aren't Magic Anymore

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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When is a jury trial over? That's a mildly metaphysical question that the Supreme Court will consider on Tuesday in a case where the judge dismissed the jury and then changed his mind. He caught the jurors before they left the building and called them back to consider their verdict again.

On the surface, the question may seem trivial. But it's actually profound -- because the answer reveals whether you think a trial is a magic, quasi-divine roll of the dice, as our ancestors believed, or a pragmatic method to resolve disputes, the modern view.

The facts of the case are simple, but they also reveal some of the confusion inherent in the jury process. In August 2009, Hillary Bouldin’s car crashed into Rocky Dietz’s in Montana. Dietz sued Bouldin and the dispute ended up in federal court on the theory that the two were from different states.

At trial, both sides agreed that Bouldin owed Dietz $10,136 for medical expenses. They couldn’t agree how much more, if any, was owed for pain and suffering and medication. The judge decided to send that question to the jury. In other words, the jury was supposed to award the $10,136, then either add to it or leave it at that.

The jury was confused, perhaps understandably. From the jury room, jurors sent a question to the judge asking, “Has the $10,136 medical expenses been paid; and if so, by whom?”

Out of the jury’s hearing, the judge told the lawyers that if he answered the question, and then the jury returned a verdict of less than $10,136, that would be grounds for mistrial and the whole trial would have to be done again. After Bouldin’s lawyer told the judge he had been “crystal clear” in his instructions to the jury -- which can’t have been true – the judge decided not to answer the question.

The jurors promptly returned a verdict of zero dollars. The judge told them they were “free to go,” and the court went into recess. For all practical purposes, the trial seemed to be over.

But the judge quickly had second thoughts. He sent the court officers to go find the jurors before they left the building. He brought them back to the courtroom and told them their verdict was legally impossible and that they were supposed to have treated the $10,136 as a minimum. One juror told him, “had you said that upon sending us into the room, you would have had a different answer.” The judge asked the jurors if they had experienced “undue influence” in the intervening few minutes. They said no. He then sent them back to deliberate again, and this time the jury awarded Dietz $15,000.

But Dietz wasn’t satisfied, and he appealed. The U.S. Court of Appeals for the Ninth Circuit held that under the Federal Rules of Civil Procedure, a trial judge may recall a jury if nothing has been done to prejudice them in the meantime. Because other courts of appeal have ruled differently, the Supreme Court agreed to take the case.

That brings us to the deep question at stake: how should we determine whether a trial is over? Courts that have held that a  jury can’t be called back after being released by the judge have reasoned that, especially in the era of electronic communications, a bright-line rule protects against the possibility that the jurors would have been improperly influenced, for example by e-mail and text message. Certainly the first thing many jurors will do after being released is to turn on their phones.

But that apparently practical explanation can’t be quite right, as the Ninth Circuit noted, because jurors could be secretly texting or receiving messages even while they're still in the jury box.

There’s something more fundamental going on, which the appeals court indirectly recognized when it characterized the bright-line rule as “talismanic.” The underlying reason for treating a  trial as automatically over when the jury is dismissed is that it captures the ancient idea of trial by jury as a kind of deep magic.

In the ancient past, trial by jury was one of a few different options, including trial by ordeal and trial by battle. Like those other two kinds, the jury trial had a certain element of randomness to it. Participants in the legal system believed, on some level, that the gods, or maybe a single God, were dictating the outcome.  In this sense, a jury trial was like the flip of a coin. Once over, it was over. Fate had spoken.

Some elements of this archaic view still remain in our current jury trials. The jury pool is supposed to be selected at random. We don’t make juries give reasons for their verdicts, partly because we’re worried that the explanations won’t make any sense. And all lawyers understand that you take your chances if you send a case to the jury. That’s why settlement of cases is so common: the jury verdict is still a kind of coin-flip, and most lawyers and parties want to avoid that.

Given these atmospherics of chance and magic, it’s understandable that some courts want the trial to be over when magic words are spoken.

The opposite view, taken by the Ninth Circuit, is more modern and pragmatic. Trials cost money. Judges sometimes make mistakes. And if a mistake can be fixed quickly, and the jury hasn’t been improperly influenced, why not let the jurors have another go?

The Supreme Court may not mention magic when it decides this issue. But the justices will still be influenced by the unspoken idea of the jury trial as a manifestation of chance. Our world may be less enchanted compared to the past. But the law isn’t entirely disenchanted yet.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Noah Feldman at

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Susan Warren at