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Selecting the Decision Maker

SELECTING THE DECISIONMAKERThe decision maker determines who wins and who loses, who prevails and recovers damages and who has to pay for those damages. Which decision maker you choose is very important and you should give very careful consideration to what type of entity you want making the decisions in your particular case. This may make the difference between winning and losing in court. The catchall term "decision maker" applies to a number of entities. Some cases require the decision maker to be a magistrate or an administrative agency. However, the most common decision makers available in a civil trial are a judge (or in some instances, a panel of judges) and a jury.

The Judge

Judges are officers of the court. Some are elected and some are appointed; their tenures, powers, and responsibilities vary widely among jurisdictions.

A judge is present during a trial whether or not a jury is involved. If the jury makes the factual decisions, the judge's role is to maintain order in the court, to ensure that things run smoothly during the course of the trial, and most importantly, to instruct the jury regarding the law.

When no jury is present, the trial is called a BENCH TRIAL. The judge decides whether the facts presented are true, applies the law, and determines which party should emerge victorious at the end of trial.

One advantage of a bench trial is that it requires less time than a jury trial. Often, it is easier for a single person (a judge) to come to a conclusion than for a jury (usually twelve people, although some jurisdictions allow reduced juries of six or eight) to agree on an outcome. In addition, judges are arguably in a better position to understand all of the intricacies of the trial process, being educated in the law and faced with legal issues every day.

Of course, the pool of judges is much smaller than the jury pool, which is a large section of the general public. Judges are often backlogged, and it may take longer for a case to actually get to trial.

Furthermore, judges are regular people beyond their black robes and elevated benches. Although they are charged with being impartial and making decisions based solely on facts presented and relevant law, judges will always have personal biases. Ideally, a judge will be able to put aside personal issues when deciding a case, but as for any other person, this may be easier said then done. Judges are obligated to excuse themselves from presiding over a trial if there is a risk that they will be unable to remain impartial, but this does not always happen.

The Jury

A JURY TRIAL may be an option, but in most civil cases the defendant must request a jury; it is not automatic. A jury is designed to be a panel of one's peers; that is, a cross-section of the general population that is not personally biased against the individual defendant and not inclined to prejudge the parties or the evidence based on personal preferences or experiences.

People who have the potential to be biased should be weeded out during the jury selection process, when attorneys or parties representing themselves have the opportunity to question potential jurors about their lives, habits, and beliefs and, if necessary, eliminate candidates who seem likely to make decisions adverse to a given party. Note that jurors CANNOT be eliminated based on race or gender.

Some parties choose to hire jury consultants. Consultants approach jury selection strategically, with carefully-researched questions designed to weed out certain categories of jurors that may be adverse to a party in a given trial. Because of their experience, jury consultants can be a valuable resource, but remember that hiring such an expert will require considerable extra funds.

There are advantages to choosing a jury trial. Many people feel that jurors, their "peers" will be better able to evaluate the position of an average person going before the court than a judge, who may seem to be far-removed from everyday life. In addition, while a judge is ideally completely neutral and impartial, a juror could have certain sympathies that may be helpful to a party. For example, a plaintiff who is the mother of an injured child may hope that other mothers on a jury will be more receptive to her side of the dispute.

On the other hand, the opposite may be true "jurors" sympathies can turn out to be harmful to a party. For the example used above, if there are indeed mothers on the jury, they could be considered a danger to a defendant accused of causing the child in question to be injured.
Situations like this are what jury selection and the use of jury consultants aim to prevent, but are always a risk when opting for a jury trial.


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