Question: Do you have faith in the U.S. jury system?
Richard Schaden: Of all the systems I have seen around the world, and I’ve been in many legal systems in addition to the United States. I think it’s the best I have seen. There is some argument for, instead of having Judges be lawyers that either came from the political arena, or from the practicing arena, to have judges actually educated as judges. I know in Korea, they do that. You go to judge school or you go to law school. And there’s a difference between being a judge and a lawyer.
As far as, in our system, trying a case in front of a judge as a finder of fact as compared to in front of a jury as a finder of fact, I’ll take the jury anytime over the judge. The judges have their prejudices as anyone does, as the jury does. But at least with the jury, you have six or 12 people to spread those prejudices along. You don’t know when you are talking to a judge what he’s thinking, what his prejudices are, what he likes, what he doesn’t like, who he was mad at that morning, or who he’s planning on being mad at the next day. It’s a very scary system when you only have one finder of fact. And you can’t ask the judge; well what’s your religion? What do you believe in? What do you hate? What do you dislike? In a way, you can find those things out from juries and you can make at least a selection process. And again, you get to spread it out over a group of people in stead of only one person.
So, the jury system, I think, works much better for settling disputes and for understanding what the facts really were in a way that are they’re understood by a good cross-section of the peers of the people who are in the trial where, as I say, just a judge trial, you have to live with the prejudices that go along with that one particular individual.
There could be a case made for more of a blue ribbon jury in the case of technical cases. But that has a lot of problems also. I’ve read about it a bit and I think that this system we have for civil cases, which are rare, because not very many countries use juries in civil suits; conflicts between people, or between people and corporations. I think it’s probably the best system I have seen. And even though the juries may not be very sophisticated in mathematics, chemistry, physics, or medicine, they understand the impressions, and that’s important.
Question: How does an attorney’s approach differ before a single judge versus a stable of jurors?
Richard Schaden: Well, you have to really look at the dynamics of the particular courtroom. You have to think, how did the judge get on the bench? If you’re in Federal Court, the judge was appointed by basically the executive branch, the President that was in office at the time he was appointed. And that is what’s called an Article III Judge. It’s based on the United States Constitution, Article 3. Article 3 judges have their job for life. So, that extent, it makes them a bit more objective because they know that if they say something or make a ruling that is unpopular, they don’t lose their job. They’ve got that job for life. And that’s a good thing, and a bad thing.
The bad part of it is, it become kind of a power trip and they realize that they’ve got that power for life and a lot of times, Federal Courts are not very sensitive to people’s needs and people’s conflicts. They believe that they were ordained when they got their robes somehow to deal with more sophisticated issues, like corporations and patents and federal issues. And it’s sometimes hard to get a federal judge to really be sensitive to people’s issues.
Now, on the other hand, in the state court systems, the judges are either appointed or elected and they have a political connection somehow and you have to look and see what that is. And they usually have to get re-elected. They don’t want to say things that irritate people, they don’t want to do things that irritate people, or irritate the corporations that help put them in office. So, you’ve got to look when you get in a particular case, or courtroom.
In the federal system, as I said, the judges are appointed by the sitting President, the Executive Brands of the United States government, and they have that job for life. And it’s very difficult to ever be removed as a Federal Judge. You can say and do some of the worst things against people, against corporations, or offensive things, and you still are there for life. So, that gives them a little level of arrogance, which is difficult. I often say about Federal Judges that they think they were ordained then they got their robes. Not to say there isn’t some very good and very sensitive Federal Judges, but to a large extent, Federal Courts see themselves as very sophisticated and they really don’t see themselves as courts for people. They see themselves as courts for corporations and patents and federal trade issues and what they would consider more high-powered and sophisticated things.
So in the federal system, you have to realize that and oftentimes it is necessary to play to the jury, which is a jury of people. And it’s difficult; you have to assess the whole situation because no matter how much the jury may be on your side, the Federal Judge has a lot of power to totally destroy your case. A Federal Judge can say things out of the side of his mouth to the jury that makes you look like you’re violating justice, it looks like you’re being a bad person and that you’re trying to go in a wrong direction. So, you have to be able to manage that. That’s a whole different thing.
When I try cases against the United States Government, which I have many times, you do not have a jury. It’s always better to have another co-defendant in the case where you have a right to a jury, at least against one party, for example, against the United States for air traffic control, for example, and at the same time against some corporation or airline, so you have a jury at least in the courtroom. And then the judge is under pressure of having to pay attention to the jury and not look like he’s offending the jury, and not totally inconsistent with the jury. So, a jury is a great safety valve in that context. So I always try to do that if I can.
If you don’t have a jury in the federal system, you’re going to have to have to play to the prejudices of the Court, and of the Judge. So, you’re going to have to learn those quickly. And there’s a few tests that I use, for example, to find out where I think that judge may go if I reach a little far on behalf of my client, or push some particular issue. So, it’s much more sensitive.
In the state court system, judges are elected and they are elected by the community, or by the corporations that are in that community. And so they are much more sensitive to being offensive and are much more likely to be people’s courts. So, that’s usually my preference.
I walked in front of a multi-district litigation panel recently where they were trying to remove my case to federal court and the senior Judge on the panel said when I walked up to the podium, “And here comes Schaden again with his never ending quest to stay out of federal court.” So, I have developed that reputation.
Question: What have you learned about the art of reading juries?
Richard Schaden: I never have used a jury selection system. I’ve never used jury consultants. I’ve read novels about them, I’ve seen them in movies, I have always just kind of gone with it from, I guess I would say a “seat of the pants” approach. I find that most of the cases I try are long cases, they aren’t things that would go on for one or two days, they typically would go on for two weeks to two months. I try to wear well with the jury. Learn never to over reach, to confront everything, to avoid nothing, and to be really straight and honest about it. Never over reach. After a couple of days, the best of worst of people understand that and they tend to listen, and they do the right thing. I mean, you might find a difficult person on the jury, but the rest of the jury tends to bring them around.
Recorded on January 25, 2010