The challenge of choosing a six-person panel may make you rethink your jury-selection strategy. But some lawyers are asking whether the change in jury size violates the Illinois Constitution.

On June 1, 2015, civil juries will change in size from 12 members to six. (See Matthew Hector, Bills produce six-person (and better paid) juries and a new eavesdropping law (LawPulse, Illinois Bar Journal, January 2015)). The change in jury size, mandated by Pub. Act 98-1132, has led to two interesting discussions - whether a six-person jury requires new litigation strategies and whether the change in jury size is constitutional.

Trial strategy in a six-juror world

Not all states require a 12-person jury for civil trials. In Illinois, a six-person jury has been available for some time for certain types of civil lawsuits. Section 5/2-1105 of the Illinois Code of Civil Procedure already allows six-person juries in civil lawsuits seeking less than $50,000 in damages.

Lake Zurich trial lawyer Michael J. Salvi says that a litigator's strategy should not change simply because the case is being presented to a six-person jury. Based on his experience trying contract and injury cases before six-person panels, "the best part of having a smaller jury…is that the time expended to select the jury is nearly cut in half." When asked whether a six-person jury favors the plaintiff or the defendant, Salvi says that "the fewer people the litigant with the burden must persuade, the more likely it is that [litigant] will prevail."

Robert T. Park of Moline, an attorney with Califf & Harper, P.C., agrees that a 12-person jury is better from a defendant's standpoint. It can be difficult for a smaller jury to override the opinion of "one strong juror," he notes. According to Park, it is wise to eliminate strongly opinionated jurors during the jury selection process. Otherwise, "you can't really control" the x-factor of a strong juror. Twelve-person panels tend to blunt this effect, he says.

Salvi, a shareholder and president of Salvi, Salvi & Wifler, P.C., is the author of a new jury-selection guide published by the Illinois State Bar Association. The book examines the change in jury size with regard to its effect on the jury selection process. "An important aspect of this change as it relates to the jury selection process is that the number of peremptory challenges remains the same." As a result, "the litigator must now be even more prepared for voir dire."

In other words, using all of the preemptory challenges they had before, litigators will now select six jurors and an alternate. A lawyer that is more skilled in jury selection will have a distinct advantage, according to Salvi. "The makeup of smaller juries will be less the function of chance and more a function of the relative skills of the attorneys."

Is it constitutional?

In addition to its impact on trial strategy, the jury size change also presents a constitutional problem, at least according to some lawyers. Park recently wrote about the issue for Trial Briefs, newsletter of the ISBA's Civil Practice and Procedure Section.

"We've had a 12-person jury going back to 1818, when Illinois was admitted to the Union," he says. Article I, Section 13 of the Illinois State Constitution states that "the right of trial by jury as heretofore enjoyed shall remain inviolate." Park wonders whether cutting jury sizes in half after almost 200 years "harms or changes" the right to trial by jury.

He notes that the Illinois Supreme Court has acknowledged the fundamental nature of a 12-person jury in Sinopoli v. Chicago Railways Co., 316 Ill. 609, 619-20 (1925). The Sinopoli court stated that "[t]he essential thing in the right of trial by jury is the right to have the facts in controversy determined under the direction and superintendence of a judge by twelve impartial jurors.…" Id. Park acknowledges that other states and federal courts provide for fewer than 12 jurors. However, he notes, "the Illinois Constitution applies to neither the federal courts nor the courts of…other states."

Retired Cook County Circuit Judge Dennis M. Dohm voiced a similar opinion in the January 21 issue of the Chicago Daily Law Bulletin. Dohm's article, which delves into the legislative history of the 1970 Illinois Constitutional Convention, states that "an examination of the record reveals the unequivocal intent of the constitutional framers regarding the number of jurors in civil jury trials." Dohm's reading of the Proceedings of the Sixth Illinois Constitutional Convention indicates that, while delegates initially favored changing the nature of civil juries in Illinois, they performed an abrupt about-face and chose to preserve the traditional 12-person jury. His article is at http://www.chicagolawbulletin.com/Archives/2015/01/21/Dennis-Dohm-forum-01-21-2015.aspx.

Salvi counters that neither the U.S. nor Illinois State Constitution specifies the number of jurors that must sit on a civil jury. In fact, the United States Supreme Court has referred to the 12-person jury as a "historical accident." Burch v. Louisiana, 441 U.S. 130, 135 (1979).

Salvi expects the new law to be the subject of a constitutional challenge. "Challenges have been made at the federal level and in most of the 30-plus states that use smaller juries; they have mostly failed." In the absence of a constitutionally mandated jury size, "courts across the country have held that the legislature can decide the appropriate amount of jurors," he says.

Chicago attorney Joseph A. Power, Jr. testified on behalf of the Illinois Trial Lawyers Association when the General Assembly considered Pub. Act 98-1132. He agrees with Salvi; there is no constitutional basis for invalidating the change in jury size.

Power points to Illinois' 1870 Constitution, which provided for smaller juries in civil cases. He says that the committee comments cited by retired Judge Dohm were considered when the act was drafted. He notes that the Constitutional Committee also stated that legislative reform could change the nature and size of juries in Illinois. "They didn't feel like they needed to add more language" to the 1970 Constitution, he said.

Power said that the Illinois Supreme Court's decision in Wright v. Central Du Page Hospital Ass'n, 63 Ill. 2d 313 (1976) found that as long as the essentials of a right to trial by jury are not undermined, legislators can shape the contours. The Wright court held that "the constitutional guarantee of the right of trial by jury is not so inelastic as to render unchangeable every characteristic and specification of the common-law jury system. Flexibility for the adjustment of details remains, as long as the essentials of the system are retained." Wright, 63 Ill. 2d at 325.

From a trial-strategy standpoint, Power agrees with Salvi; smaller juries reduce jury selection time. There is one point on which Power, Salvi, and Park agree: there will be a constitutional challenge to Pub. Act 98-1132.