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One idea would be to base it off of the amount in controvery. Another would be to have some type of third party expert make recomendations on whether to use the "regular" jury vs. a specialized one.
This doesn't make any sense. If someone has an interest in the litigation - like the patent situation you've described - they'd have to recuse themselves from hearing the matter.
What I'm talking about is a panel of experts like what we have in the Eastern District of Texas or the Federal Circuit - judges who pretty much exclusively hear patent cases, are way more informed on both the law and technical issues, and who don't have a direct interest in the litigation itself. Maybe I'm being unclear, but you can have "experts" who hear the subject matter of the lawsuit but who are not conflicted out. To me, that's way more preferable than racist Johnny who's also pretty ignorant about IP law.
Because 12 people cannot represent a cross section of huge cities like Houston or Dallas. Especially after voir dire and peremptories. The whole process is not to get some represntative sampling of the community. It's to get a group of 12 people lawyers think will like their client. That's why juror-consultants like Dr. Phil make millions of dollars. It's not the rosy picture of diversity and community building that you're making it out to be.
I never took you as saying arbitration wouldn't work. And I spoke haphazardly when I said arbiter. I meant someone (whether judge, arbiter, panel of subject matter experts, whatever) who was more invested in the trial process than your average juror and who knew way more about the subject matter than your average juror. Given everything we've discussed, I don't know how you can honestly claim that's a worse alternative than the current system.
You can't just gloss over those reasons and say "that's fine and dandy" or "people should understand them." What I've described is reality. And those reasons show that juries have outlived their usefulness and really don't fulfill the function you think they do.
We don't live in Colonial America anymore. We're not in danger of English prejudice against Americans tainting our judicial system. We live in a complicated world. Sadly, the average Joe cannot grasp some of the business transactions that lay at the foundation of most litigation today. Saying that he should is nothing other than burying your head in the sand. He can't and he won't understand. People don't give a or care to understand . And nothing is going to fix that system.
Lol making jury duty optional - no one would show up.
One idea would be to base it off of the amount in controvery. Another would be to have some type of third party expert make recomendations on whether to use the "regular" jury vs. a specialized one.
If your claim is viable, then those travel costs should be re-imbursed.
"chances are you don't have the greatest of claims to begin with."
Bull .
I think this is one of those laws, intended to help "small businesses", with some rather enormous unintended consequences.
I could definitely see a large corporation deliberately running up a lot of expenses, and dragging a lawsuit out for the sole purpose of convincing a claimant with a perfectly legitimate claim that it is no longer in their interest to pursue it.
"Well, gee you think you have a case, but we can delay and delay and delay, and if you actually lose, you will be stuck with *our* legal bills, why don't you just shut the up now, and go away?"
Sorry, that is appalling to me. I don't think this will really do what the authors claim it will, and the potential costs to legitimate claims seems all too real.
I guess we will get to see.
FWIW, here is the link to the actual bill:
http://www.capitol.state.tx.us/BillL...82R&Bill=HB274
Look up the "enrolled" version.
Anyhoo, I have to get going. Oddly enough, I am reviewing contracts today, heh. Those reviews and analysis won't write themselves.
Why's that bull . If you have a viable claim, then you're worried about convincing the trier that you're right. The thought of fees doesn't really enter the picture at that point - at least not to the point of deterring you from filing.
And the scenario you described couldn't happen. You have to pay the prevailing party's reasonable fees/costs - if they just ran up the tab to with you, that's not reasonable and you wouldn't have to pay.
You obviously have never been in a lawsuit.
Or been on a jury involving a lawsuit.
"The thought of fees doesn't really enter the picture at that point"
I gurantee you, it's in your lawyers picture. Many want money down.
btw, some beautiful, awe-inspiring greed by the capitalists:
they offer to finance your legal fees for a HUGE cut of the winnings. After the capitalists and lawyers take their cut, you get way less than 50%.
That's as ty as companies taking out life insurance policies on their employees, with the companies as beneficiaries.
Jurors don't have the ability to recuse themselves, AFAIK, per le 28, Section 455. Unless they disclose on jury-selection and are vetoed, then can't just walk away.
If you're talking about a panel of expert judges, then we're certainly talking about different things.
I'm talking about jurors. My contention is that there's no reason why racist Johnny would be unable to understand IP law. Especially after lawyers on both sides cleared him. If racist Johnny can't understand IP law by the time the trial needs to be decided, then it really isn't racist Johnny fault, is it?
I'm not making it to be anything rosy, tbh. It's simply undeniable that's transparent though. People from a random pool walk in, and both sides veto or clear until they have a jury both sides think can understand and try the case. The pool might not be representative, but it's diverse. It came from a pool that neither side controlled.
But I do. For example, it's not like it isn't well known by lawyers that certain venues are more beneficial or detrimental to certain legal matters. If you have a patent violation case, you really want to file on Judge Ward's court in Eastern District of Texas. His 'expertise' in patent litigation isn't what's making you file there. It's his above average rate of siding with the patent holder that does, and his expediency in these cases.
You could claim he's an expert, but you can't claim there isn't some sort of bias (unintentional or otherwise) there either.
Sure I can. I don't think the jury system is 'perfect', but I find dubious that 'expert-only' are better, if better, either.
Well, there's nothing stopping people or companies from requiring arbitration and even stipulating venue when creating a contract. I think the system has changed in that regard, and that's substantially more common now than it used to be. I don't know that jury trials are going to disappear though.
Ultimately it's both side's fault to get to the jury trial point. They could work out a settlement at any time if they feel they're getting screwed by the jury system.
I knew you were going to say that.
The only thing I can say about that is that while growing up, I lived in a place where it was mandatory to vote. And during discussions as to wether make it optional, people said exactly the same thing you're saying. Then I came over here, and I see people getting involved. It's not all, but some people do care.
I think the publicity of cases like the OJ trial or Casey Anthony actually promote that.
Uh? I could have a viable claim for $4K... Lawyer fees would certainly deter me from filing.
???
Isn't that what small claims court is for?
In NJ, small claims demands top off at $3K ($5K if it's for the return of a security deposit). Anything over, and you can't use them.
EDIT: I should say, you can use them, but you can't complain if the award is topped off at those limits.
Gotcha. Thought the cutoff was higher.
There's a 'Special Civil Part' that has a $15K top, but I don't know that it works as small claims, where you don't really need representation.
.
I thought we were talking about the person/en y who ultimately tries the case. Your patent example suggested that someone might have an interest in the case and still be in a position to decide it (i.e. a judge). Those are cases where recusal is proper.
Your right that racist Johnny's racism doesn't impede his ability to understand patent law. But my point is that Johnny is unable to understand patent law because he's a layman. Surely you're not arguing that Johnny is as proficient in patent law as someone like Judge Ward or Judge Schneider, no?
Well first, you're wrong if you think that those who are selected are picked becuase they can understand the case. They're picked because the lawyers think they're sympathetic to their client.
Regardless of that though, what's the point of transparency? You're conceeding that its not representative of the community - so you can't make the democratic participation argument for juries.
Sure, the process of selecting a jury might be "open" (whatever that means). But if you have a transparent selection of 12 idiots, I wouldn't say you have much.
I've consistently admitted that judges are also biased. But that bias doesn't preclude the plaintiff and defendant from putting on their best case and having a knowledgeable person decide. I'd rather take that situation than the show of having 12 idiots who aren't paying attention decide whether I have to pay millions of dollars.
But you're not backing up your claim with good justifications.
Is your claim that juries are better because their transparent? If so, why is that transparency better than having another en y with more subject-matter knowledge decide the dispute? Why are the alternatives any less transparent?
Is your claim that juries are just as capable as judges or arbiters when it comes to deciding complicated litigation? If so, I'd love to hear your reasons why.
Do you have any other reasons? What are they?
And there's nothing requiring you or anyone else to sign those contracts. If you don't like an arbitration or choice-of-venue clause, don't sign the contract.
I agree with the rest of your points here. But I don't see how that's relevant to the argument that the jury system is outdated?
I'd guess that the % of voter participation here is way below the % from where you grew up.
You'd be hard pressed to find someone who would actually want to do their jury duty. At least I am.
This is the last thing I'll take issue with. I don't think that its the lawyers fault if an average juror can't understand the intricacies of a patent infringement case. Do you fault a rocket scientist or neurosurgeon for being unable to explain the intricacies of thier fields to a layman? Or do you say rocket science and neurosurgery are really complicated?
A lot of litigation today involves really complicated transactions. Lawyers live with these cases for years, review millions of pages of do ents, read hundreds of cases and statutes, and talk about this every day. It's impossible for Johnny to understand all of that in the course of a 3 week, 9-5 stint on a jury.
impossible?
hmmm...
And most of these lawyers give Hugh chunks of money to the
Democrats to keep the scheme going. Don't they? They are referred
to as "trial lawyers".
I'd definitely fault the rocket scientist and neurosurgeon.
Having said that, I'm not offering any explanations about physics on this board again.
Well, there's certainly a disconnect there. I thought we were talking about a juror panel made off 'only experts'. Since that's not that you're arguing, I'll step away from it.
Oh no, I wouldn't make that claim at all.
I also don't agree that Johnny is unable to understand patent law (to the extent he needs to understand it to determine a case) because he's a layman.
But you're well aware that in civil cases a bench trial is the standard unless one of the parties (or both) actively requests a jury. So, again, you get to Johnny instead of the Judge because at least one of the parties requested to get there.
Yes, but because both sides think they're sympathetic to their clients at whatever capacity, it's implicit that they understand what they're going to be trying.
I never made a 'democratic participation' argument, I actually mentioned it wouldn't be representative. I made a 'diversity' argument and 'transparency' argument based on the fact that neither side, nor arguably the state, can tailor the base pool where jurors are picked from.
Now if you want to reduce this pool to just 'experts', and then you want sides to determine who or what qualifies as an 'expert', then you're certainly reducing both diversity and transparency.
But you don't know that you have 12 idiots every time. You could have 6 lawyers too. Obviously, I understand the need as a lawyer to try to have as much control as possible from a risk management perspective. I just don't know that is a good enough excuse to do away entirely with the jury trial system.
Ultimately, IIRC, only about 1% of federal civil cases end up in a jury trial, a sharp decline for the past 30 years. You could argue that's a reflection of an outdated system, and I can argue that's a reflection of risk management. Whatever it is, there's no question that jury trials can be avoided and are actively avoided. 99% of the time.
The presence of a jury shouldn't preclude the plaintiff and defendant from putting on their best case. Perhaps you're simply underestimating the '12 idiots'.
What is there to back up? I think Americans are largely happy with their justice system. There are aspects that are normally open to critique, like cost, but I don't recall the jury trial system being questioned as a non-working en y. If anything, the one having to back up the claim that abolishing the status quo is the superior option is you, not me.
I already answered to this. Maybe not to your satisfaction, but I certainly did (when I mentioned the conflict of interest on non-magistrates). Expanded on the transparency and diversity argument above.
Not my claim. But your claim is that jurors are never competent enough to try a case. I don't know you've backed up that contention.
No other reasons.
And there's nothing forcing you to put up with a jury trial unless the other party is actually requesting for it. My point is that I don't think the jury trial system is outdated, but I also think it's the last resort. It's where you fall if you didn't agree with any of the other options you have on the table at any given time. It isn't perfect, but you certainly had options not to get there.
It's a lot smaller. But still substantially larger than 'nobody'.
But Johnny doesn't need to understand all that all the time. You're arguing that the problem is volume, not necessarily complexity. What's Johnny deciding is if A is true or false. I'm not saying there's no complexity involved, but your job in front of a jury isn't to go through the entire financial law or system. It's to isolate A, make your best case why it should be true, and your opponent will make their best case of why it should be false.
Is there a certain amount of waste of time (and thus, money) involved in bringing Johnny up to date? No doubt. Will Johnny ever be as good as a judge or expert on the matter? Probably not. Is it impossible for Johnny to know *enough* of what's being tried to make a decision? I don't know that it is.
If jury duty paid more than 5$ a day, I'm pretty sure people wouldn't mind it as much.
I'd definitely fault the rocket scientist and neurosurgeon.
Having said that, I'm not offering any explanations about physics on this board again.
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