Oregon State Bar Bulletin — APRIL 2005

Who Decides?
Specialized courts vs. the jury of peers
By Janine Robben

Two hundred years ago, Thomas Jefferson told Congress that he considered trial by jury to be "…the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution. "

But that was before American juries were being asked to decide technology-based factual issues that Jefferson could not have dreamed of.

As a result, the right to trial by jury is under attack by lawyers and public interest groups who now believe that limiting the power of juries — or even using specialized courts to take verdicts out of the hands of juries altogether — is necessary to reach fair verdicts in medical malpractice, patent infringement and other highly technical cases.

To jury consultant Bruce Boyd, such concerns are misplaced.

"The modern American jury is a miracle in terms of what it can dig through and understand," says Boyd, who has worked for Portland-based Tsongas Litigation Consulting, Inc. for five years. "I’ve personally never seen a case where I’d recommend a judge because the facts were too complex."

But Joe Miller, a professor of intellectual property law at Lewis & Clark Law School, says that "the notion (of specialized courts) has kicked around for decades" because not everyone shares Boyd’s confidence.

"A jury is a great way to figure out whether someone’s run a light and caused an accident," says Miller. "It’s really good at the Scott Peterson stuff. It’s not good at determining whether this microchip infringed this patent."

In Oregon, specialized courts are not a new concept: The state has a tax court, created in 1961, as well as administrative boards, like the Land Use Board of Appeals and the Workers’ Compensation Board, that function like courts in areas governed by both statutes and administrative agency rules.1

But some lawyers and public interest groups would like to see even more specialty courts.

"The topic comes up in intellectual property, medical malpractice, securities, antitrust," says Craig Bachman, an intellectual property litigator in Portland. "Anywhere people have said lay jurors are not sophisticated or knowledgeable enough (to reach the correct verdict)."

According to the National Law Journal, Illinois, Maryland, Massachusetts and Pennsylvania all are considering creating specialized, non-jury medical malpractice courts, in which a judge with medical expertise would decide cases, possibly with the help of court-appointed experts.

In addition, a number of states have considered "tort reform" that would leave cases in the hands of juries while restricting the scope of their verdicts.

For example, in November, Oregon voters narrowly rejected Ballot Measure 35, a constitutional amendment that would have imposed a $500,000 cap on jury awards for non-economic damages in cases of medical negligence or recklessness.

Eyes on medical malpractice
These proposals have raised a number of questions, including: whether lay juries are, in fact, incapable of reaching fair verdicts in highly technical cases; whether other alternatives — such as waiving a jury, using a mediator or allowing the jury to ask questions during trial — can solve the problem; and, if not, whether specialty courts are constitutional, even in civil cases.

Nowhere have these questions received more public attention, or more heated rhetoric, than in the area of medical malpractice and other tort-based litigation.

In February, the Washington, D.C-based Progressive Policy Institute (which describes its mission as "defining and promoting a new progressive politics for America in the 21st century") issued a strongly worded report calling for "a network of specialized health courts that would replace America’s broken justice system."

Under the institute’s plan, juries — which it said "have the impossible task of trying to discern legal standards when they should be deciding facts" — would be replaced by courts run by specially qualified judges. Expert witnesses would be hired by the courts instead of the parties, and damages would be awarded according to a schedule that, the institute said, would take into account both economic and non-economic factors.

Nationwide, the supporters of such plans include Dr. William Sullivan, an Illinois hospital emergency room director who told the Journal in February that taking medical malpractice cases away from juries does not trouble him.

"You could say (it’s unconstitutional that there are no juries) about tax courts, too," Sullivan told the Journal. "I’m sure a lot of people would love to have some sympathetic jurors in a tax court. That’s why they have tax courts — there’s a bunch of specialized knowledge that you need, and it brings out a fairer verdict for both sides."

But Carlton Carl, spokesman for the Trial Lawyers of America, told the Journal that, in his opinion, specialty courts for tort-based litigation would be unconstitutional.

And Oregon lawyers who represent plaintiffs in medical malpractice and other tort cases strongly disagree with Sullivan for policy, if not constitutional, reasons.

David K. Miller, whose Portland- and Eugene-based Miller & Wagner firm even maintains a website to keep readers current on "tort reform," says: "Simply put, the current political movement referred to as ‘tort reform’ sacrifices the rights of those injured by bad medical care in favor of protecting the financial resources of insurance companies and groups of medical providers.

"…[B]y seeking to impose restrictions on what juries can do," Miller says on his website, "they are saying that we, as citizens, need to be ‘protected’ from what we, as citizen jurors, decide is right. They talk of ‘outrageous awards’ and ‘runaway verdicts,’ yet they neglect to mention that the people sitting on juries are the same people who walk into voting booths and cast their votes every election."

Portland practitioner Ray Thomas, who has tried cases against asbestos and tobacco companies, uses even more-blunt language, describing specialized courts as efforts to put verdicts "in the hands of special interests.

"Specialized courts are, for the most part, premised on the idea that juries can’t understand," he says. "That’s outrageous, horrible and completely unnecessary."

Getting the jury to "get it"
While "tort reform" is being publicly debated at the ballot box and in the media nationwide, another, more quiet debate about specialized courts has been taking place for years among intellectual property lawyers.

Their field already has experienced specialization in two ways: Through the creation, in the early 1980s, of a single federal appellate court2 to rule on patent cases originating in U.S. district courts nationwide, and that court’s decision, in Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), to take some of the most crucial issues in patent cases away from the jury.

"Under Markman, the judge interprets patent language and meaning as a matter of law," says Portland attorney Bachman. "That is a restriction on the long-term historic roles of the judge and jury. It leaves the jury with a limited area to decide."

According to Lewis & Clark’s professor Miller, most intellectual property attorneys agree that there’s more stability and predictability in patent litigation than there was in the 1970s.

"There’s still less predictability than some would like," says Miller. "But, to me, it seems strange to expect perfect predictability."

Whether patent litigation could benefit from even more specialization, and less jury involvement, is a matter of disagreement.

Mark Porter, an intellectual property attorney for Mentor Graphics in Portland, would like to see the United States reconsider the role of juries for patent litigation and consider specialized intellectual property courts like those in use in Germany.

"Jurors seem very good at deciding who’s telling the truth," says Porter. "But that’s usually not a factor in patent cases. The challenge for the (patent) jury is to figure out whether the defendant’s product has all the elements in a patent claim. I’m frankly of the opinion that (in some cases), the jury can’t get it, and it comes down to the persuasiveness of the attorneys."

As proof, Porter cites a multimillion dollar patent infringement case in which his company — the plaintiff — lost. In a post-verdict briefing, he says, "The jurors essentially admitted that they didn’t understand the technology (that was the subject of the case)."

Bachman agrees that "there’s a feeling (among patent lawyers) that a lot of erroneous decisions are made.

"I know of cases where judges, or juries, have made mistakes and it’s become clear through the passage of time and other events," he says. "It’s not uncommon."

As an example, Bachman cites the case of Leatherman Tool Group, Inc. v. Cooper Industries, Inc., 199 F.3rd 1009 (9th Cir. 1999), in which Cooper admitted copying the appearance of Leatherman’s utility tool.

"Anybody who’s in this business knows that Tim Leatherman invented that utility tool," says Bachman. "In the end, he prevailed in part and lost in part, but he went through years of litigation. That shouldn’t be a goal of our system."

But, says Bachman, while "a lot of people involved in patent cases probably have the view that the present system is unsatisfactory, they don’t necessarily see it as a jury competence issue."

For example, he says, the inadequate quality of American patents — driven by the fact that U.S. patent examiners have to process more than one highly technical patent application per day — is a bigger issue.

"I see patents as a pretty large, organic process that goes all the way from invention to commercialization to jury decision," he says. "I don’t think we should try to shape the effectiveness of the entire process by how we construct the jury. That’s like the tail wagging the dog. The real issues now are the volume of patent applications, the workloads of patent examiners, and inventors who are encouraged to over-claim their inventions. These are many times more-important issues than specialized juries."

In Bachman’s opinion, the biggest factor affecting a jury’s ability to decide a patent case correctly is the sheer volume and complexity of the evidence, not the inadequacy of lay knowledge.

"It’s what I call the ‘fog of complexity,’ he says. "It’s the lawyer’s job to cut through that complexity. In most cases, if that’s done well, lay jurors can decide. The problem comes if it’s not done well — or if it’s not the lawyer’s goal to cut the fog."

Boyd, the jury consultant, agrees. "Patent lawyers are invariably brilliant, but I wouldn’t say they are born communicators," he says. "They can’t try a case as if they’re trying it to another IP (intellectual property) lawyer. They’re going to have to do some very hard intellectual work to make it something that anybody can understand. They (IP lawyers) are asking, ‘What if we patent life forms? How do we explain that at the submolecular level?’ Well, they’d better be ready to explain it."

According to Boyd, "The reason our business exists is that lawyers have lost cases they shouldn’t have.

"I think people make up facts," he says. "Jurors need a coherent story in ordinary language and, if they don’t get it, they create facts to complete the story. Lawyers leave factual holes and jurors go back in the room and decide facts for themselves."

Specialty Courts: It could be a long wait
In Prof. Miller’s opinion, intellectual property lawyers who are holding out for specialty trial-level courts may have a long wait, for two reasons.

The first, he says, is constitutional.

"Patent cases have been tried to juries since the 1700s," he explains. "(Specialized trial courts) create a problem with the right to a jury trial. It would require fully re-engineering the system to use special tribunals or blue ribbon juries: A substantial number of people think it would require a constitutional amendment.

"The federal circuit issue was studied for at least 15 years," he says. "I don’t know how much attention was paid to the 7th Amendment (trial by jury) problem or if that was what caused them to focus on an appellate fix. I do know that the business interests that wanted to make use of the system pushed for these reforms. They wanted to get what they could get."

The second barrier to change, says Miller, is inertia.

"We’re very comfortable with the devil we know, versus the devil we don’t know," he says. "While a lot of lawyers won’t say it, the issue is: ‘You’re asking me to give up my expertise. Juries may not be very good at figuring out these questions, but I’m very good at communicating with them.’

"It’s not in everyone’s interest to change," concludes Miller. "It’s not being nefarious; it’s people playing to their strengths. The juror issue speaks of real suspicion of expertise. We don’t want experts. We want our peers to decide." 

Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the bar Bulletin.


1. Specialized courts are to be distinguished from so-called "problem-solving courts," which deal with a narrow class of offenses — such as substance abuse — or a narrow class of offenders, such as juveniles. Oregon’s 27 state court judicial districts currently have 48 such problem-solving courts.

2. The United States Court of Appeals for the Federal Circuit, commonly known as the Federal Circuit.

Juries: Looking Back, Looking Ahead

The issue of who is competent to judge a case — and who should be given the power to do so — greatly pre-dates Thomas Jefferson.

According to the American Bar Association, the modern jury goes back to the 12th century, when England’s King Henry II determined that disputes over lands and inheritances would be resolved by 12 "free and lawful men" who had personal knowledge of the issue in question.

But, while the concept of juries followed English settlers to the American colonies, and even served as a rallying point for American colonists against unpopular British laws, a dispute arose over what role they should play in the new republic. According to the ABA, some colonists feared that jurors’ favoritism for local litigants in civil cases could threaten commerce between the states and with foreign nations.

As a result of these fears, the U.S. Constitution sent to the states for ratification in 1787 preserved the right to trial by jury in criminal cases, but made no mention of civil cases.

After that omission became a major issue on ratification, the Constitution quickly was amended to require trial by jury in both criminal and civil cases, as well as indictment by grand jury for capital and other "infamous" crimes.

And, when the 14th Amendment was ratified in 1868, its guarantee that the states would provide civil and criminal litigants with equal protection was, within a few years, held to include trial by jury.

"The criminal jury protects the accused from government oppression, either the overzealous prosecutor or the biased judge," says Joseph Metcalfe, a former federal prosecutor and state public defender who teaches trial practice and criminal law and procedure at the University of Oregon School of Law.

"Juries have the power to nullify," says Metcalfe, "acquitting a defendant despite overwhelming evidence of guilt. The prosecutor may not appeal a verdict of not guilty."

Last term, Metcalfe notes, a majority of the Supreme Court strongly reaffirmed its view that the right to trial by jury does not depend on the jury’s efficiency or competence.

"Although such values might be better served by professional fact-finders," says Metcalfe, "the framers of the Constitution did not envision administrative perfection when including the right to a jury in the Bill of Rights. The criminal jury serves a higher purpose, limiting the exercise of governmental power when the state wishes to deprive an individual of his life or liberty."

According to Metcalfe, much of the debate regarding the jury’s competence to decide complex cases has been primarily limited to civil litigation.

"Research confirms that in criminal cases, juries generally understand the evidence presented and render a verdict consistent with this evidence," he says. "When a jury’s decision differs from that of a judge or a ‘specialized jury,’ that difference may not reflect jury incompetence. The jury may in fact be serving the very purpose for which it was created, acting as a safeguard against government overreaching or reflecting the community’s sense of justice."

Metcalfe, who previously has been a criminal prosecutor for the U.S. Department of Justice and a state court public defender, both in Washington, D.C., says that, in his opinion, it’s rarely in a criminal defendant’s interest to waive his or her Sixth Amendment right to a jury trial.

"Although every day — across the country — thousands of juries return guilty verdicts, in my experience the defense fares better by presenting its case to a jury of 12 citizens, who bring to the deliberation room their collective intelligence, experience and sense of justice," he says.

As for the possibility that specialized courts may someday expand into the criminal arena, Metcalfe predicts "that will just never happen," even if it were constitutionally permissible.

"Even when jury competence is questioned — after the acquittal of O.J. Simpson, for example — no one seriously suggests a constitutional amendment restricting the right of a criminal defendant to have 12 citizens decide his or her fate," he says. "The jury system is widely viewed as sacrosanct in this country. However imperfect juries may be, they remain a critical feature of our legal identity."

—Janine Robben

return to top
return to Table of Contents