The Twelve-Person Federal Civil Jury in Exile

In the mid-1990s, the Advisory Committee on Civil Rules, with Fifth Circuit Judge Patrick Higginbotham as Chair and our honoree, Professor Ed Cooper, in the early years of his long service as Reporter, unanimously (coincidentally, by a 12-0 vote) proposed an amendment to Federal Rule of Civil Procedure 48 that would have required the seating of twelve-member juries in federal civil trials. The requirement of a unanimous verdict, unless waived by the parties, and the abolition of alternate jurors would have been unaffected; attrition could reduce a jury's size below twelve members, with a floor of six unless the parties consented to a verdict rendered by a smaller jury. The Standing Committee approved the final proposal by a wide margin, but the Judicial Conference rejected the change. As a member of the Advisory Committee at the time I was strongly persuaded that the amendment had merit and continue to feel that way, but must admit that the chances of a renewed proposal being adopted seem virtually nil no matter its merit.

This brief account is, then, a lament rather than a call to action.