Judge Jennifer Elrod
I know that I am a little late to the party, but I recently heard of the new TV show "Jury Duty." As a former trial lawyer and trial judge, the title immediately piqued my interest.
The show features many actors, who simulate a civil jury trial, and one nonactor, Ronald Gladden, who serves as the foreperson in what he believes is a real trial. My law clerks tell me that critics call this a "mockumentary" — whatever that means.
The show is purposely silly; the fake jurors, lawyers and judge do ridiculous things to see how the incredibly earnest Gladden will react.
But for its silliness, the show — perhaps unintentionally — offers at least one serious lesson. It reminds the audience of the simple yet brilliant design of the right to trial by jury.
The right is based on the assumption that 12 jurors, regardless of station, will have enough collective wisdom and common decency to do justice.
Most of the time, that assumption turns out to be true, even in a fake trial.
I have long been enamored by the jury trial. My grandmother took me with her to jury duty when I was eight years old — and it was this experience that first led me to pursue a career in the law.
I had the great privilege of serving as a judge for five years for the 190th Civil District Court of Harris County, Texas. During those years, I presided over more than 200 jury and bench trials.
When I was confirmed to the U.S. Court of Appeals for the Fifth Circuit, I mailed the invitations to my investiture using jury duty stamps.
And I myself have been summoned to appear for jury duty before the local municipal, county and district courts.
Now, alas, I sit in my solemn, so-called ivory tower, reading briefs and writing opinions. It is an honor I scarcely deserve, and for which I will forever be grateful. But a piece of my heart will always belong to the jury.
In reflecting on the importance of the right to a jury trial, I can't help but be reminded of John Adams' famous quote: "Representative government and trial by jury are the heart and lungs of liberty."
I used to repeat those words before every venire that entered my courtroom. They were true then, and they are true now.
Given my fondness for the jury, you can imagine my interest in "Jury Duty." A show about the inner workings of a state court jury trial? No summons needed.
Many aspects of the fictional trial on the TV show, however, would have seemed ridiculous to Adams.
Adams defended British soldiers against murder charges in the 1770 Boston Massacre trials; the TV show involves a lawsuit by the fictional fashion label Cinnamon & Sparrow for damage done to company property by a drunken employee.
Adams' impressive closing argument in the Boston Massacre trial went on for days; it took "Jury Duty" defendant Trevor Morris' lawyer two days just to start his opening.
Adams' jurors set their passions aside and acquitted most of the British soldiers; the TV show jurors engaged in all sorts of distracting antics, including one juror who — I'm not kidding — attached a chair to his pants.
To be sure, Adams would seem to have much more in common with Atticus Finch than with Morris' attorney. And yet, I think that Adams would appreciate the show more than one would think at first glance.
Whatever its entertainment value, which I do not comment on one way or the other, "Jury Duty" rightly presents the jury as an important civic duty and privilege.
The Sixth and Seventh Amendments offer a simple promise: No one shall be subject to judgment except by a jury of their peers. That promise is just as important now as it was at the founding.
In fact, my Inn of Court recently put on a show about the continued viability of the right to jury trial, called: "Is The Jury Out? The Jury Trial on Trial."
It is complete with the closing-argument musical numbers of "Should We Keep the Jury?" sung to the tune of Taylor Swift's timeless "You Belong with Me," and "We Will Decide," which uses Gloria Gaynor's famous "I Will Survive" to — spoiler alert — celebrate the Sixth and Seventh Amendment's victory at trial.
Among other things, the Inn of Court production grapples with the question of whether the jury trial system is outdated in light of modern advancements.
I will admit that technology has changed many aspects of litigation. Artificial intelligence, especially, has become more and more prominent. Some forms of AI are already being used in the courtroom, such as predictive models for state court criminal sentencing.
ChatGPT and other AI platforms are being utilized, infamously, to create legal work product. ("ChatGPT, please write a Law360 article about jury duty in the style of U.S. Circuit Judge Jennifer Elrod.") Change is upon us.
But for all the good that technology has to offer, nothing can beat the jury.
The idea is simple: The common decency of 12 jurors is the most reliable guarantee of justice. Our differences — of occupation, background, sex, race, religion, national origin, etc. — are no obstacle to this goal. Our plural society is a feature for the jury system, not a bug. And I would particularly recommend against saying that you are racist to try to get out of jury duty, as episode one of the show illustrates.
To do its job, a jury does not need special training or advanced degrees. Twelve ordinary people are good enough.
And in this regard, I think that Adams would have been happy to have Gladden, the TV show's unwitting protagonist, on his jury. Gladden is not presented as a genius or legal expert. Rather, he appears to be something much better: a good person.
When presented with all manner of silliness and incompetence — by the parties, by the lawyers and by his fellow jurors — Gladden does his level best to do the right thing.
He answers the call to serve as foreperson, despite not wanting the responsibility. He establishes authentic relationships with the other jurors, most of whom are purposely outrageous characters. And he guides the jury as, together, it reaches a unanimous verdict.
I would like to think that at voir dire in the Boston Massacre trials all those years ago, Adams would have been looking for a juror like Gladden — an ordinary person, who would look to the evidence without partiality.
Adams said during the trial, "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence."
Indeed. And history tells us that a jury can be relied on to set aside its personal opinions and render a just verdict. All that is needed for such a jury is a group of normal, well-intending Americans.
And speaking of well-intending Americans, one especially important person I know was recently summoned to jury duty: my daughter. Newly graduated from college, she was devastated to learn that she no longer qualified for the student exemption.
But in all seriousness, I was proud to see how excited she was to go. She dutifully made sure to leave on time, dress appropriately and actively participate in voir dire. After all, she had to carry on the family tradition.
I confess that I sometimes miss presiding over jury trials. Maybe that is one of the reasons why I occasionally sit by designation on one of my circuit's district courts. Moonlighting as a trial judge is especially meaningful to me because it allows me to stay close to the real source of power and legitimacy in our federal government — the people.
Long live the jury! It continues to safeguard liberty and individual rights 232 years after the ratification of the Bill of Rights.
Given this critical function in our government, the jury bears a great responsibility. It takes real sacrifice and commitment to discharge that duty.
And sometimes, it takes an uncommonly courageous foreperson to ensure that the jury reaches the right verdict, à la Juror No. 8 in "12 Angry Men." (Though speaking as a former district judge, I should point out that a juror's conducting independent research is textbook grounds for a mistrial.)
But most of the time, all that we need is someone decent. Most of the time, a Ronald Gladden will do.
Jennifer Walker Elrod is a judge on the U.S. Court of Appeals for the Fifth Circuit.
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