By the Honorable Arthur E. Gamble, Judicial Advisor
Civil justice requires jurors who are willing and able to render a fair verdict. Jurors must be able to sit for extended periods, to comprehend the evidence presented by the parties, and to follow the law per the judge’s instructions. In voir dire , lawyers seek impartial jurors who are able to serve in this critical function.
As judges, we often face citizens who are involuntarily responding to a summons to appear and who are unable to serve or are not particularly interested in serving. The unwillingness of potential jurors to serve may be particularly acute in long civil trials involving voluminous documents and video or audio depositions. The challenge is to select jurors who will find the trial an interesting and rewarding experience.
Potential jurors will sometimes ask to be excused from jury duty for hardship, either because they cannot serve for financial or medical reasons or because they simply do not want to serve. When ruling on a hardship excuse, a trial judge must consider myriad factors. The judge must consider the burden of jury service on a citizen who might not be in a position—mentally or physically—to handle it; she must balance the claimed hardship against fairness to other potential jurors who also shoulder a burden but are willing to serve; she needs a sufficient number of panelists to properly administer the trial.
At the same time, the judge must also avoid wasting time. Judges sometimes err on the side of keeping too many prospective jurors for fear of not having enough. This can yield undue hardship for jurors and waste taxpayer money.
This article explores jury-management techniques that will properly administer our jury system by reducing the hardship of jury service while fostering the selection of jurors who can render impartial justice. First, let me share a few stories illustrating the dilemma facing lawyers and judges in the real world of civil jury trials.
Many years ago, my partner and I represented a railroad in a wrongful-death action arising from an accident on a rural railroad crossing. A train struck a semi-trailer truck, tragically killing two young passengers. The entire community knew of the accident. Many knew the young victims’ family. The case came on for trial in the fall at the local county courthouse. The presiding judge was well known throughout the countryside. Most of the prospective jurors worked in agriculture.
After swearing in the panel, the judge introduced the case and asked if any panelist would find it difficult to serve. One brave soul raised his hand and told the judge that, since he was a farmer, it would be an extreme hardship to serve; it was harvest season and he needed to work the fields. The judge excused the juror. Suddenly, a majority of the panel had a hardship because it was harvest time. One by one, the judge excused potential jurors until we did not have enough left on the panel for peremptory challenges. It was a stampede! The judge sent the sheriff out to summon citizens off the town square to serve on the venire. Understandably, these folks were not excited about the prospect of jury service in an emotional double-death case, especially on such short notice. After many other fits and starts, we finally selected a jury and promptly settled the case.
When the governor appointed me to the bench a few years later, I vowed not to repeat the mistake of that venerable country judge. I developed an unsympathetic ear to the burdens of jury service and granted hardship excuses only in extreme cases, such as unexpected deaths in the family or medical emergencies. I viewed jury service as a responsibility of citizenship. Like other duties, jury service requires sacrifice. I would live to regret this harsh approach to jury selection.
I presided over the jury trial of a civil action brought by a prospective casino manager against the owners and operators of a casino for breach of an alleged management agreement.  This was a complex commercial case involving mountains of evidence and millions of dollars. We expected the trial to last at least two weeks.
As luck would have it, we drew a panel of potential jurors who wanted to be anywhere but this particular trial. They offered every excuse in the book. One juror said he could not afford to be on a jury for more than one week since he was a truck driver and his employer would not compensate him during jury duty. Seeking to hold the line against mass exodus, I applied my usual strict approach and denied his hardship excuse. I denied several others as well—hoping the lawyers would take care of the problem with preemptory challenges. However, there were not enough strikes to account for all of the claimed inconveniences. After a lengthy voir dire , we seated a jury. Unfortunately, our truck driver remained along with several other unhappy jurors.
After a few days of trial, we faced a full-fledged jury rebellion. Outside the presence of the jury, I disclosed to counsel that our truck driver had called to inform the clerk he was not coming to court. Instead, he was going to work. The clerk informed the juror, “You know, if you don’t come at nine o’clock, the judge is going to send the sheriff after you.” The juror responded, “Well the sheriff’s going to have a hard time finding me because I’m going to work in Peoria[, Illinois].” The clerk said, “He’ll send the highway patrol if he has to.” The juror showed up at nine o’clock. During morning recesses, the trucker began rabble-rousing, telling other jurors that he was not coming the next day. This caused speculation and concern among the jury. I informed the lawyers as follows:
“[F]ive out of the eight jurors asked, for one reason or another during voir dire , not to be on this case, and they still don’t want to be on this case, and some of the jurors who didn’t indicate that they had a problem don’t want to be here either.”
I then told counsel that in fairness to other jurors, I would not excuse the truck driver but would enforce his jury summons by contempt, if necessary. Nevertheless, we needed to find a way to get the jury off the focus on their own discontent and to get them focused on this jury trial.
I decided a good old-fashioned lecture was necessary. As the jury filed in, I –seated in a black robe on the elevated bench and flanked by the American flag—used all the trappings of judicial power and implored the jury:
“[Y]esterday I mentioned … that your service on this jury and jury duty in general is one of the most important obligations of citizenship that we have in the United States and in the state of Iowa. And we have so many privileges guaranteed by the Constitution in this country and in this state, and one of the most prized liberties we have is the right to trial by jury, whether that’s in a criminal case or in a civil jury trial like this one . . . .
“We all have the right in this country to be judged by a jury of our peers. We don’t in this country allow people to volunteer for jury duty. We have a feeling in this system that volunteers who might want to be on jury duty may come with some hidden agenda or some special interest, may have some bias for or against a particular side in a case or whatever, and we don’t have volunteers for jury duty.
“Instead, we randomly summon individuals who are citizens of the state and . . . county to come and serve as jurors, and inevitably when that happens, we impose upon your schedules, we impose upon your lives, and we have to do that in order to get jurors who are ready, willing, and able to sit, listen to the evidence that is offered by the parties, follow the judge’s instructions, and arrive at a just verdict. That’s what a jury trial is all about.
“So through the summons, ultimately citizens are compelled to come to court and to serve on a jury duty. It’s not voluntary, and it’s inconvenient. We try the best we can to accommodate the pressing obligations of people who are called to jury duty. Sometimes we can’t, and sometimes we just have to go forward.
“But we recognize that jury duty is . . . an important sacrifice that’s necessary to preserve our liberties in this state. [I]f you think about it, . . . in other countries in the world, we have some citizens literally killing other citizens who want to have the rights and the liberties that we have that we take for granted in this country and we have armies of American soldiers in foreign lands fighting to try to help others have the kind of rights that we have here. . . . .
“Now, it’s been reported to me that at least one of you has repeatedly indicated that you’re not going to come to court to be a juror on this case and that that has been fueling some speculation among this jury as to what would happen if one or more of you do not appear for jury duty. Would there be a mistrial? What would the judge do? What would happen? . . . .
“Certainly, your summons is a court order that will be enforced. . . . .
“. . . We don’t need to do that. . . .
“. . . [W]e know that some of you have other things on your mind, but we’ve got to get past that. It’s time to, as I indicated a couple times yesterday, reach accommodations with all of the other things that are going on in your lives and in all of our lives. We’ll do what we can to help you with that, but the bottom line is this is a case that demands your immediate attention, and we can’t be having the distractions of what would happen if this happened and what would happen if that happened. It’s time to get past all of that.
“This is the trial. We’re going to try this case, and we’re going to get to a just result in this case with your assistance. So it’s not that we don’t understand the inconveniences and the sacrifices we’re imposing upon you, and it’s not that we don’t want to try to assist you the best we can, but the bottom line is you’ve been summoned to serve on this jury. You’re going to be here, and so we need to try to make it as comfortable as we can….
“If we can do anything to help you with your scheduling conflicts or make explanations to employers or schools or whatever you need, we’ll do that . . . .”
Obviously, this was less than ideal jury administration. No lawyer or judge wants a disturbance like this in the middle of a jury trial. Nevertheless, my Hail-Mary speech had its desired effect. The jury settled in. We tried the case to a $10,000,000 verdict.
Was the lecture necessary? I have since concluded there is a better way to manage juries to prevent calamities like this. The key is to find the sweet spot between the extremes of excessive liberality with regard to excuses (sometimes to the point of not having enough jurors for trial) versus being so strict that jurors rebel against the court.
With the National Center for State Courts’ help, several jurisdictions are developing standards to help judges navigate hardship excuses. For example, the Iowa Supreme Court Committee on Jury Selection recommends that “[a] liberal deferral policy should be employed to reduce the number of outright excusals. Potential jurors should be able to reschedule their service once without any questions asked.” 
The American Bar Association suggests deferrals of jury service to a date certain within six months should be permitted by a judge or duly authorized court official. Prospective jurors seeking to postpone their jury service to a specific date should be permitted to submit their request by telephone, mail, in person or electronically. Deferrals should be preferred to excusals wherever possible. 
The Michigan courts adopted a best practice preferring deferrals of jury service to excusals, noting: “For example, someone undergoing a medical procedure may be willing and able to serve in a subsequent term instead of being dismissed from their duties entirely.”  Allowing potential jurors the opportunity to postpone jury service to a more convenient date encourages jury service by a larger cross-section of the community and reduces friction caused by a summons to appear involuntarily.
Courts should consider the hardship experienced by prospective jurors based on objective standards. In 2011, as Chief Judge, I provided guidelines to local jury managers within the Fifth Judicial District of Iowa for when a potential juror may be excused or deferred.  The guidelines permitted a potential juror be excused for the following reasons:
- Medical conditions when service would cause substantial risk of injury to the health of the person, as documented by a physician;
- Elderly persons over the age of 75 who claim an inability to serve;
- Sole responsibility for the daily care of a person with a permanent disability living in the prospective juror’s household and performance as a juror would cause substantial risk of injury to the health of the person with the disability as supported by satisfactory documentation, and the prospective juror is not otherwise employed outside the home;
- Mother of a breastfeeding child responsible for the daily care of that child and not otherwise employed outside the home; or
- On active military duty.
The guidelines permitted a potential juror be deferred for the following reasons:
- Job concerns (to provide the potential juror with time to make necessary arrangements);
- Financial (to give the potential juror time to make necessary arrangements);
- Students and teachers (generally deferred to the summer months or when school is not in session, if possible)
- Vacation plans;
- Mother of a breastfeeding child who would like to serve as a juror but is requesting a deferral to a time better suited to the child and her physical needs; and
- Parent not otherwise employed outside the home who has primary responsibility for the care of minor children during the day (to give the potential juror time to make necessary arrangements).
In 2018, The Iowa Supreme Court Committee on Jury Selection recommended, “The office of the State Court Administrator . . . should publish clear and objective criteria on how jurors may demonstrate financial or medical hardship and guidelines for rescheduling service more than once.”  Many courts around the country have done just that.  For example, the Arizona Judicial Branch provides a comprehensive roadmap for prospective jurors helping them understand the grounds judges and court officials consider when ruling on hardship excuses. 
The plight of farmers summoned during harvest, the resistance to service by uncompensated workers, and other financial and medical hardships can be mitigated through thoughtful jury management practices. By employing liberal deferral practices and transparent benchmarks for hardship excuses, courts can encourage juror participation in the justice system allowing litigants to be heard by a fair cross-section of their peers. Lawyers will appear before juries who have had input in scheduling their jury service and who are ready, willing and able to arrive at a fair and impartial verdict. Jurors will come away from the process with a sense of pride in their participation in the judicial branch of government.
 Arthur E. Gamble retired after thirty-five years as a Judge of the Fifth Judicial District of Iowa including twenty-three years as Chief Judge. He currently serves as a Senior Judge of the Iowa Court of Appeals. Judge Gamble is a judicial advisor to the Civil Jury Project at the NYU School of Law. He is the Judge in Residence at the Drake University Law School in Des Moines.
 Pavone v. Kirke , 801 N.W.2d 477 (Iowa 2011).
 Iowa Supreme Court Committee on Jury Selection, Recommendations of the Committee on Jury Selection 7 (March 2018), https://www.iowacourts.gov/collections/41/files/499/embedDocument/ .
 American Bar Association, Principles of Juries and Jury Trials 12 (2005), https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwjV_rkoZXnAhUSGc0KHcJMAgcQFjAAegQIBBAB&url=https%3A%2F%2Fwww.americanbar.org%2Fcontent%2Fdam%2Faba%2Fadministrative%2Famerican_jury%2Fprinciples.pdf&usg=AOvVaw3F2nCOYO1SHdUzC_YpmbVX .
 Jury Management Best Practices Manual, Michigan State Court Administrative Office 15 (Version 1.0 2019) , https://courts.michigan.gov/Administration/SCAO/Resources/Documents/bestpractice/JuryBestPractices.pdf .
 Memorandum from Arthur E. Gamble on Jury Management—Updated Criteria for Excusing & Deferring Jurors by Clerks of Court/Jury Managers in the 5 th District (Feb. 22, 2011) (on file with author).
 Iowa Supreme Court Committee on Jury Selection, supra note 4, at 8.
 See, e.g ., King County, Information for Jurors , https://www.kingcounty.gov/courts/superior-court/juror-information.aspx (last visited Ja. 21, 2020); Virginia’s Judicial System, The Answer Book For Jury Service 1, http://www.courts.state.va.us/courts/circuit/jury.pdf ; State of Main Judicial Branch, Exemptions, Excuses, and Deferrals , available at https://www.courts.maine.gov/maine_courts/superior/jury/exemptions.html (last visited Jan. 21, 2020); Superior Court of California, Deferrals/Excusals , available at https://www.sb-court.org/jury-information/deferrals-excusals (last visited Jan. 21, 2020).
 Arizona Judicial Branch, Jury Service—What to Expect , available at https://www.azcourts.gov/juryduty/Jury-Service-What-to-Expect (last visited Jan. 21, 2020) (“ Requests to be excused are infrequently granted. In particular, excuses are not granted on the basis of religious beliefs, moral beliefs, status as business proprietor, professional status as doctor or lawyer, etc. Excuses are granted on the basis that you do not understand English or because jury service would cause you to incur costs that would have a substantial adverse impact on … your necessary daily living expenses or on those for whom you provide regular care. A request to be excused must be made in writing to the court that issued the summons and must be supported by appropriate documentation. Requests for excuse should be directed to the Jury Commissioner’s Office. Possible grounds for excuse include:
- the person has a mental or physical condition that causes them to be incapable of performing jury service
- jury service would substantially and materially affect the public interest, adversely
- the person does not understand English
- jury service would require the person to abandon someone under their care, because it is impossible for them to obtain substitute care
- jury service would cause the person to incur costs that would have a substantial adverse impact on the payment of their necessary daily living expenses or on those for whom they provide regular employment support
- jury service would result in illness or disease
- the person is a certified peace officer employed by the state
- jury service would cause undue or extreme hardship
- the person has served as a juror in this state within the last two years
- the person is at least 75 years of age (Documentation in support of the excuse is generally required)
- the person has served on a grand jury in an Arizona state court within the last four years. (Does not apply to alternate grand jurors).”).