Recently, the option of a private jury trial has been elected by litigants as the preferable means to gain control of trial proceedings. The parties have the ability to select the judge, the bailiff, discovery limitations, rules of civil procedure and evidence, controlling law, length of trial, timing of trial commencement, orders of confidentiality, measures of security, and the finality of a decision. Seeing that complex cases may take years to wind their way through trial and the appellate process at tremendous expense, the finality of decision holds a cost-benefit appeal for both sides.
The concept of a private jury trial arose from the rubric of “mini-trials” conducted before a private judge in alternative dispute resolution forums. Private jury trials mimic what would happen in a public jury trial but offer predictability in the process, timing and selection of jurors. They are especially attractive to clients in high profile cases who wish to avoid the media and publicity, protect financial and tax records, protect trade secrets, and protect personal or internal corporate information.
The ability of applying a private jury verdict as the anticipated “norm” in a particular geographic region has been used to advantage by defendants in private jury trials. Private jury trials may be conducted in different states during concurrent periods of time. For instance, in mass tort/class action cases involving product liability or toxic substances, plaintiffs and defendants can conduct private jury trials in different states to evaluate how claims and damages are perceived by juries in differing population centers. This method helps “test the waters” before plaintiffs’ counsel files a multitude of cases nationwide. It allows the parties an opportunity to shape settlement parameters. It helps avoid future high volume litigation. It also can assist defendants in planning management strategies for avoiding future liability. Quantitative models of predictability derived from a private jury verdict offer a host of advantages to defendants and their insurance carriers.
Private jury trials are structured in phases once the jurisdiction and governing law – state or federal – is selected. The parties then select the location of the trial, design the trial process, and prepare stipulations to govern the trial, including an agreement for enforcement of judgment. A Special Master is usually retained and paid on a pro rata basis by the parties. A list of retired judges from alternative resolution panels are nominated by the parties. In the case of disagreement, the Special Master will select the judge. The Special Master also works with a jury consultant in developing a jury pool. The Special Master establishes a trust fund at a custodian bank to pay jurors, pay expenses and manage disbursements of damage awards.
A jury consultant recruits prospective jurors through market research with focus on specific demographics by sex age and occupation or, in some cases, random digital dial. Jurors must have a valid drivers’ license and be registered to vote. The judge and jury consultant then review a computer list of prospective jurors and make a random selection of potential jurors to ensure neutrality. In screening candidates, the judge explains that the trial is not a “Mock Trial” but is the equivalent of a public trial that takes place in a difference setting. Jurors are offered financial compensation which exceeds the daily public juror rates. In long cause cases, the private compensation offers jurors an incentive to serve. They are awarded a bonus if they serve through the entire trial until entry of judgment. For a recent chemical injury private jury trial in Los Angeles, prospective jurors who appeared for two days of voir dire but were not selected by counsel to serve were paid $500. The jurors who were selected and served were paid $300 per day by checks delivered to them at the end of the week by the retired bailiff attending the case. All prospective jurors who were privately paid completed W-9 forms managed by the Special Master. Of course, when prospective jurors are privately compensated at attractive rates, there are many who want to serve so filtering is an important step in establishing the jury pool. Counsel have reported that prospective private jurors, knowing they would be compensated, slanted their answers to voir dire questions to try to ensure their selection. The parking and security for prospective jurors can be tightly controlled with sequestration of the jury if counsel so elect.
A private jury courtroom was paid for by the parties in the recent chemical injury private trial and built at JAMS in downtown Los Angeles. It offers a model of how the setting of private jury trials can be utilized. It is located at 555 South Olive Street, Los Angeles and pictures are set forth below.
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