Massachusetts Judges, Trial Bar Embrace Six-Person Juries

Litigants, lawyers, and judges in Massachusetts are embracing smaller juries in civil cases even as pandemic-era limitations on their size have lapsed, suggesting their increased efficiency outweighs concerns about any impact on the outcome of a case.

Judges are facing pressure to quickly clear the backlog of cases that piled up from courts operating at reduced capacity during the Covid-19 pandemic, and starting a trial with six jurors seated, rather than 12, is a useful tool.

“What we learned during the pandemic was that smaller jury pools and smaller jury sizes are much more efficient for the administration of justice and judges see that firsthand,” said Marc Diller, president-elect of the Massachusetts Academy of Trial Attorneys. “You can’t unring the bell.”

The Supreme Judicial Court in January rescinded an order mandating civil cases be tried to juries of six, with 12-person juries again becoming the default. But attorneys and judges are becoming less hung up on 12 being the magic number, as long as appropriate safeguards—like sufficient peremptory challenges—are in place to root out potential bias.

Increased Efficiency

The Supreme Judicial Court’s flexibility on jury size during the pandemic helped move cases through the system at a time when “it was really hard to get a jury seated,” said Lynn Kappelman, a partner in Seyfarth Shaw LLP’s labor and employment practice.

It’s still tough to get a trial date, and “judges, in my experience, are a little bit flexible about the number of jurors right now because of the backlog and the pressure they’re under to clear up their dockets and keep things moving,” said Victoria Santoro, a partner on Sweeney Merrigan Law LLP’s trial team and president-elect of the Massachusetts Bar Association.

Peter Krupp, a judge in the Massachusetts Superior Court’s Business Litigation Session, told attorneys at a February pretrial conference involving legal malpractice claims against Nixon Peabody LLP that he has “had incredibly good luck with trial before juries of six, seven, or eight.”

“I’m not sure I understand the rationale for insisting on 12 and, frankly, cases get tried more efficiently when we have a smaller jury pool,” Krupp said.

Diller, founder of Diller Law LLP, said judges do have discretion to order that trials proceed with fewer than 12 jurors, though their preference is that attorneys on both sides agree.

Beyond speeding up jury selection, which can be time consuming and expensive, smaller jury pools can also reduce wait times once trials begin.

“Judges like to start trials on time,” Diller said. “When you have 14 different jurors, you’re just inviting more opportunity that one has a childcare issue, one is a little bit late, or one’s car didn’t work.”

Donald Schroeder, a labor and employment partner at Foley & Lardner LLP, said agreeing to bring a case to trial last August with six jurors and two alternates was the right decision. “I certainly didn’t want to cause a delay in the length of the trial. Seating the jury and getting right into the opening statements and evidence was a good thing.”

Schroeder said there’s a high likelihood that courts will continue “seeking to conduct civil jury trials in a more expedited fashion with a smaller group of jurors” moving forward, though he doesn’t expect it to be the norm.

Impact on Verdict?

Cory Flashner, a member at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC, said his preference on jury size would depend on whether he had the burden of proof, since “it’s just easier to convince six if you have the burden than it is to convince 12.”

Despite understanding courts’ interest in moving cases along, “as advocates, we always have to adhere to what’s going to be best for our clients,” Flashner said. “There would have to be some pretty serious outside considerations,” like a sale of a business being held up, for him to “ever try to persuade a client” to agree to a smaller jury.

Michael DeMarco, a partner who practices civil litigation at K&L Gates LLP, said “it’s all about doing what’s fair and reasonable and not necessarily just what’s efficient and time saving.”

Kappelman, who defends clients in employment litigation, said she doesn’t think smaller juries necessarily favor plaintiffs over defendants. They also reduce the risk of “someone hijacking the jury and causing it to be hung,” Kappelman said.

Smaller juries do make it more critical that attorneys have adequate peremptory challenges to exclude jurors and enough time for individual voir dire. “The last thing I think the judge should do” is encourage litigants to accept a small jury “and then not allow you to really delve into whether these people come to the table with bias or prejudice,” Kappelman said.

Diller said he’s spoken with many judges that believe smaller juries don’t impact the verdict. And with “the shortage of judges and the backlog from the pandemic, the problem is not going to get better without maintaining some of the efficiencies that were put into the system.”