What is an Advisory Jury?
It is commonplace at trial to remind jurors that they are important. Judges routinely emphasize that jury service is a “civic duty” essential to the fair administration of justice in society. Jurors are generally instructed that they, not the court, are the “sole judge of the facts” in the case and the only parties qualified to assess whether witnesses are credible or evidence persuasive. And it is the practice in many courts for all other individuals to stand respectfully when the jurors enter or exit the courtroom. All these statements and gestures are designed to impress upon the jury that the decision that they make is important, meaningful, and strictly necessary for cases to be resolved.
Except that sometimes that isn’t true. Sometimes a jury is just advisory, and its verdict is of no legal significance whatsoever.
What is an advisory jury? It is a jury empaneled to render a verdict in cases where there is no legal right to a jury trial. [1] This includes cases involving equitable claims, such as requests for recission of a contract, specific performance, or an injunction. It includes cases where a jury trial has been waived, either by contract or failure to demand a jury. It also includes tort claims against the United States under the Federal Tort Claim Act, which mandates trial by a judge.
Since there is no jury trial right in these cases, an advisory jury does not decide the outcome of the dispute. Instead, its verdict does nothing more than “enlighten the conscience” of a judge, who will be the one to actually decide the legal and factual issues in the case. [2] The judge can choose to follow the jury verdict, but he or she can also completely ignore it. Because the jury verdict has literally zero impact on the resolution of the legal issues, the decision to impanel an advisory jury is “is entirely discretionary” and “is said to be not subject to review on appeal.” [3]
Like many unusual legal procedures, this practice is old, predating the American founding. A fulsome description of separation of law and equity under English jurisprudence is beyond the scope of this article. But in short, prior to the 19th century, lawsuits sounding in “law” such as breach of contract, negligence, or battery were triable to a jury in the courts of law, such as the King’s Bench or the Court of Common Pleas. Claims that did not fall into those categories, but instead were based upon fundamental principles of fairness or “equity” were not triable to a jury and were resolved by the Lord Chancellor in the Court of Chancery.
Despite this separation, a procedure developed during the late 17th or early 18th century to permit a Lord Chancellor to send fact questions relevant to equitable disputes to the law courts for a jury verdict. [4] This was called the “feigned issue” procedure. Under a “feigned issue,” the Chancellor would invent a fictional bet between the parties as to the disputed facts. [5] Since determining who was owed money under a wager was the sort of lawsuit that could be tried to a jury, the law courts would empanel a jury to decide the “case” and then report back to the Chancery Court. [6] The precise origins of this practice are mysterious, but early examples of fact issues referred for jury trial involved the validity of wills, or whether a party was a valid heir to an estate. [7]
By the mid-eighteenth century, what may have originated as an ad-hoc maneuver became more standardized, and a frequently repeated justification for the “feigned issue” emerged – that the input of a jury was useful to “inform the conscience of the Court.” [8] And while it is unclear to what extent the Lord Chancellor was formally bound by the earliest of feigned issue verdicts, by the mid nineteenth century it was established that he had the power to disregard the jury’s determination and substitute his own judgment instead. [9]
American courts in many, though not all, U.S. states borrowed the distinction between law and equity from their English predecessors. And along with this distinction, came the use of “feigned issues” to refer fact disputes in equity case for jury trial. By the early 20th century, American Courts, following a similar progression to their English cousins, had largely merged the courts of law and equity, permitting the same judges to handle claims arising under either. However, the distinction remained between legal claims tried to a jury and equitable claims resolved by a judge (indeed, the distinction remains to this day). Also preserved was the ability of a judge resolving an equitable claim to solicit a non-binding jury verdict for the benefit of his or her “conscience.” On the federal level, this power was codified in the original version of the Federal Rules of Civil Procedure, where it remains to this day in Rule 39(c). [10]
How are advisory juries used today? Infrequently. The late Judge Weinstein in the Eastern District of New York was a notable proponent, repeatedly empaneling advisory juries, including once on a six-week public nuisance case. [11] Other courts have recommended their use in cases where “community standards” or the reaction of a “reasonable person” are key fact issues. [12] Advisory juries are also appropriate where there is legal uncertainty about whether a party has the right to a jury trial. [13] And it is not uncommon for courts hearing both equitable and legal claims involving the same facts to try both claims together and treat the jury’s findings as “advisory” with respect to the equitable claims only. [14]
Where are advisory juries inappropriate? The Court of Appeals for the Fourth Circuit, while upholding the largely unfettered discretion of district courts to empanel advisory juries has repeatedly counselled against doing so in Title VII discrimination cases, except under extraordinary circumstances. [15] And there are no shortage of decisions denying requests for advisory juries as unnecessary or wasteful of judicial resources. [16]
So, what lesson can we take away from all of this? While advisory juries are rare, their existence and the largely unchecked discretion vested in judges by Rule 39(c) means that there is no such thing as a court case that is guaranteed to avoid a jury.
If a legal dispute is one that would be better tried in front of a jury – either because of the reprehensible character of the conduct at issue or the sympathetic nature of one of the parties – it is worth considering whether there is a viable argument to empanel an advisory jury. And if there is a credible argument that the case turns on “community standards,” or the reaction of a “reasonable person” there is at least some chance that such arguments might be successful.
And finally, should you find yourself chosen for a long federal jury trial in Brooklyn, try to forget that you might only be there to “enlighten the conscience” of the judge.
[1] See Fed. R. Civ. P. 39(c) (“In an action not triable of right by a jury, the court, on motion or on its own: (1) may try any issue with an advisory jury”).
[2] Skoldberg v. Villani, 601 F. Supp. 981, 982 (S.D.N.Y. 1985) (“The function of an advisory jury is solely to enlighten the conscience of the Court. An advisory verdict has no binding effect upon the Court; indeed, whether the Court accepts or rejects an advisory verdict, the Court is required by Fed.R.Civ.P. 52(a) to make its own findings of fact and conclusions of law, which alone form the basis of appeal.”).
[3] NAACP v. Acusport Corporation, 226 F.Supp.2d 391, 398 (E.D.N.Y. 2002); see also Mallory v. Citizens Utilities Co., 342 F.2d 796, 797 (2d Cir. 1965) (“When an advisory jury is used, the ‘review on appeal is from the court's judgment as though no jury had been present.’”); 9 Wright & Miller, Fed. Practice and Procedure § 2335 (4th ed.) (“the case law is abundantly clear: it is completely within the trial judge's discretion under Rule 39(c) whether or not to use an advisory jury, and the district court's exercise of discretion is virtually unreviewable”).
[4] Chesnin, Harold & Hazard, Geoffrey C., Jr., Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 Yale L.J. 999, 1006 (1974).
[5] Id. at 1005.
[6] Id.
[7] Id. at 1006.
[8] Id. at 1007.
[9] Id. at 1008.
[10] The advisory jury rule was Rule 40(c) in the 1937 version of the rules. While silent on the deeper history of the practice, the original advisory committee noted that “[a] discretionary power in the courts to send issues of fact to the jury is common in state procedure.”
[11] N.A.A.C.P. v. AcuSport, Inc., 271 F. Supp. 2d 435, 465 (E.D.N.Y. 2003) (“The members of the jury were not told that they were sitting in an advisory capacity….A brief preliminary charge was given on the role of the jury, the proceedings, and the law governing the case. The jury then sat for six weeks examining highly technical statistical and other studies with the aid of qualified Daubertized experts from the fields of statistics, merchandising, and criminology; large data sources; extensive video depositions; government reports; and other proof.”).
[12] See e.g., McNary v. Carlton, 527 S.W.2d 343, 348 (Mo. 1975) (ordering obscenity issues to be tried with an advisory jury); Ortega v. Home Depot U.S.A., Inc., Case No. CIV. 2:11-1921 WBS, 2012 WL 77020, at *4 (E.D. Cal. Jan. 10, 2012) (“A crucial question the trier of fact will have to answer in this case is whether a ‘reasonable woman’ in the plaintiff's circumstances would consider the working environment to be sexually abusive and hostile. Who is better qualified to answer that question: a male judge, whose background and experience give him no more insight into the expectations of a reasonable person, much less a reasonable woman, than anyone else; or a randomly selected jury consisting of men and women from the community? The answer should be obvious. The court would benefit from the advice of a jury.”).
[13] See Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187, 192 (7th Cir. 1994) (“We commend the late Magistrate Judge Weisberg's efforts to deal with the jury trial issue in the face of the legal uncertainty of the retroactivity of the 1991 Act. Alexander's trial took place on September 15 and 16, 1992. On September 17, 1992, after the jury verdict, the district court dismissed the jury and set forth its own independent findings of fact and conclusions of law. The district court recognized the undecided retroactivity issue and the procedural problems it posed.1 Specifically, the district court wanted to avoid a retrial if in fact the 1991 Act was not retroactive and therefore precluded a jury trial.”); see alsoWinchester Industries, Inc. v. Sentry Ins., 630 F. Supp. 2d 237, 242 (D. Conn. 2009). (“Should the Second Circuit hold that Plaintiffs were not entitled to a jury trial, the jury would be considered an advisory jury for purposes of Rule 39(c).”).
[14] Bank of China, New York Branch v. NBM L.L.C., Case No. 01 CIV.0815 (DC), 2002 WL 1072235, at *6 (S.D.N.Y. May 28, 2002) (“For the sake of efficiency and convenience, the entire case shall be tried to a jury. As to the non-jury claims, subject to further discussion with the parties, the Court may take an advisory verdict from the jury.”); Starr Int'l Co. v. Am. Int'l Grp., Inc., 623 F. Supp. 2d 497, 502 (S.D.N.Y. 2009) (“Here, because many factual issues are common to both the express trust/breach of fiduciary duty counterclaim and the conversion counterclaim, it will expedite matters for the jury and the Court, as well as make the jury's task easier, if the jury is asked to render a “verdict” (actually an advisory opinion) on the express trust/breach of fiduciary duty counterclaim and those aspects of AIG's declaratory judgment counterclaim that relate to it.”).
[15] Cox v. Babcock & Wilcox Co., 471 F.2d 13, 14 (4th Cir. 1972) (“While it may well be that the use of an advisory jury as provided by Rule 39(c) should be sparingly exercised in discrimination cases, its use in this case does not warrant a reversal of the findings of the Court itself, amply supported as they are in the record.”); Moss v. Lane Co., 471 F.2d 853, 855 (4th Cir. 1973) (“We feel it appropriate to observe, however, that, as we stated in Cox v. Babcock and Wilcox Company, 4 Cir., 471 F.2d 13, the use of advisory juries in discrimination cases is not favored, however broad the language of Rule 39(c) may be deemed, and should be restricted in any event to the exceptional case where there are peculiar and unique circumstances supporting its use.”).
[16] See, e.g., Miller v. Safeco Ins. Co. of Am., Case No. 06-C-1021, 2010 WL 11552866, at *2 (E.D. Wis. Feb. 17, 2010) (“To impanel an advisory jury would be a waste of taxpayers’ money and time.”).
