When juries foul up the verdict

AS litigation goes, the case was strictly small time: a commercial tenant seeking to regain an advance rent payment of $400 because, she said, the landlady had failed to equip the door with a lock and had denied her access to the premises. The landlady, however, insisted that the office was in proper condition for occupancy; if the tenant wanted to abandon the premises, she was not entitled to recoup the first month's rent ($200); and because she had not given legally adequate notice of quitting, she had also forfeited the second $200.

This was a natural for TV's Judge Wapner. Indeed, the parties had already gone through one trial, before a judge, sitting in the small-claims sessions of the District Court, who ruled for the tenant. Understandably dissatisfied with the result, the landlady had claimed a jury trial in the Superior Court.

Efforts at settlement proved futile: The tenant would accept $375, but the landlady declined paying more than $300.

That left the parties no alternative but jury combat, so the judge ordered up two panels of prospective jurors and, after the empanelment procedure ended, 12 citizens took seats in the jury box.

Each side then presented her version of the facts, a process that took about 30 minutes. The judge explained the basic rules of decision in another 10 minutes. Out went the jury, returning after 11 more minutes of deliberation.

``Hearken to your verdict as the court has recorded it,'' said the court clerk to the assembled jurors, using a ritual dating back two centuries and more. Looking at the slip the foreman had signed, he intoned, ``You find for the defendant.''

The plaintiff gulped visibly, for she truly felt her case unbeatable. ``So say you, Mr. Foreman?'' the clerk went on. The foreman mumbled assent. ``So say at least 10 members of the jury?'' said the clerk. The jurors all showed agreement.

That made the verdict official. Formal entry of judgment would follow, as would assessment of court costs. First, however, the judge, after appropriate expressions of thanks and a philosophical comment on the relation between small matters and justice, sent the jurors on their respective ways. As the state had adopted a one-trial, one-day mode of jury service, they had fulfilled their duty and were now free to leave permanently.

In the now-empty courtroom, the parties prepared to heal their litigational scars. Within 30 seconds, however, the jurors had all returned.

``Judge,'' the foreman said, ``we just realized we've made a mistake. We meant to find for the plaintiff.''

This, as the judge explained to the jurors, posed a problem. Once a jury has ``affirmed'' its verdict in open court and been discharged, the law prevents the judge from changing the verdict merely on the jury's say-so. Furthermore, because the jury has disbanded, the judge cannot send it out for further deliberations.

The remedy, as the judge explained, was simple: He would allow the parties a new trial. To the judge's surprise, the jurors did not regard the matter so lightly. They readily conceded that the error was theirs. Yet they expressed great concern for the time and effort that everyone had wasted; and they wondered why the judge could not merely set things right by ordering judgment for the plaintiff.

The judge repeated his explanation, pointing out that if verdicts could be changed merely on jurors' informal request, litigation would drown in uncertainty.

``The law is crazy,'' one juror said.

Hoping that the jurors' collective common sense could help the parties reach agreement, the judge asked what the jurors thought of the parties' having come within $75 of settling. The only answer came from a well-dressed man in the front row. ``If anyone did to me what happened here, I'd sue her in every court in the land.''

As the jurors again filed out, the judge mused over the message. A glance at the parties showed that they regarded the episode as a Stanley Cup scoreless tie: Sudden-death overtime would decide. The jurors obviously regarded the case as serious, partly perhaps because of the foul-up, but even more because of an intense belief that right is right, not subject to compromise, and regardless of objectively inconsequential stakes.

How, the judge wondered, could the courts, understaffed and underequipped, effectively deliver justice to a public which honestly felt that when a person's position is correct, settlement for less than full value is not merely recognition of life's uncertainties, but rather a capitulation to the forces of evil?

On the other hand, was a system ostensibly devoted to finding the truth behaving honestly and fairly when it tried to encourage resolutions short of trial, and for some value other than what the parties were claiming?

Beyond that, should the judge have disregarded the clear rule of law and simply entered a verdict for the tenant (as the jurors said they intended), leaving the landlady to consider the expense and risk of an appeal?

While he and the parties were discussing a new trial date, the courtroom door opened once again. A juror had a final comment: ``I used to think the court system was awful. Now I know it.''

No, thought the judge, it is only as bad (or as good) as its consumers, the litigants, the jurors, and the public, will allow it to be.

Judge Hiller B. Zobel sits on the Massachusetts Superior Court.

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