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A controversial new law in Arizona pays jurors up to $300 a day to serve — but not all members of the same jury get the same pay. The hope is to broaden the jury pool for long trials by removing some or all of the financial hardship. The impetus for the Arizona legislation is a package of jury “reforms” — expected to be under consideration soon in many states — called the “Jury Patriotism Act.” It calls for, among other things, a dramatic increase in juror pay for civil trials that last more than 10 days. Critics worry that unequal pay among jurors could cause friction, that higher pay may encourage companies to stop paying employees on jury duty and that jurors may try to extend trials for the extra pay. Three other states — Louisiana, Mississippi and Oklahoma — have passed legislation that will include lengthy-trial funds in the future, while several others have adopted some of the act’s provisions. The Jury Patriotism Act’s pay requirements apply only to civil trials, although the states that have adopted versions of it have included criminal trials as well. The act seeks a greater economic and professional cross-section of jurors. These are not the classes of jurors — such as race and gender — that have been protected from exclusion by the U.S. Supreme Court. The act will be on the agenda of about 20 states this fall, said Cary Silverman, an advisor to the American Legislative Exchange Council (ALEC), the organization that wrote the act. About a third of all state legislators are ALEC members. Overwhelmingly, they are conservative Republican tort reformers, said Silverman. The act is also supported by the American Tort Reform Association (ATRA). “What it will achieve is that defendants will ultimately be judged by their peers, a group more representative of the community,” said Gretchen Schaeffer, ATRA’s spokeswoman. The act has also been endorsed by the U.S. Hispanic Chamber of Commerce and the National Black Chamber of Commerce in resolutions that often use identical language. HOW IT WORKS IN ARIZONA The average trial in Arizona lasts less than four days, well short of the time required for the lengthy-trial provisions to kick in. Since July 1, when the law took effect, only one trial has qualified, a medical malpractice case that lasted 12 days. Of the 10 jurors, only one, a retiree, was eligible for additional funds. Arizona jurors are paid $12 a day, plus travel expenses, out of state funds, regardless of what, if anything, their employers pay them. That falls at just about the national median of compensation that states pay per day for a three-day trial. The range is from $0 to $50. If a trial exceeds 10 days, the lengthy-trial fund kicks in if a juror qualifies. The fund is financed by a $15 increase in filing fees for nonindigent civil litigants in superior court, with some exceptions, such as family court. Money from the fund will be used to pay full or partial earnings replacement or supplementation for petit jurors who serve more than 10 days and who receive less than full compensation from their employers. The minimum a juror could receive is $40 a day, the maximum, $300. Those unemployed or retired would receive the minimum. Once a trial reaches the 11th day, the pay becomes retroactive to the fourth day of trial, but at a maximum of $100 a day for days four through 10. The pay scale would make whole a juror who earned up to about $75,000 a year. “We’re estimating that between 50 and 100 trials will last more than 10 days,” said Jennifer Greene, policy analyst for the administrative office of the Arizona Supreme Court. There are about 3,000 trials a year in the state, she said. Greene’s office worries that the bill may encourage employers that voluntarily pay their employees to stop. Connecticut, for example, requires employers to pay full-time employees their full salary for the first five days of jury service. Arizona has no such provision. Bob James, Maricopa County’s jury administrator, asserted that the statistics ALEC used to get the bill through the Arizona Legislature didn’t apply to his county of 3.4 million people, which accounts for more than half of the trials in the state. Most trial courts have a trial schedule of four days a week, he said, so that jurors would “not get a dime from the lengthy-trial fund for three weeks. Who can survive on $12 a day plus mileage for that long?” He and Greene share concerns that the bill will end nine-day trials, because some jurors may want to stall until the lengthy-pay provisions kick in. James worries that people will feel there is an inequity because some are paid more than others. They favor paying all jurors more from day one. Victor Schwartz, private-sector co-chairman of ALEC’s civil justice task force, at first denied that the bill’s lengthy-trial pay provisions were aimed at benefiting defendants in civil suits, but begrudgingly admitted it when confronted with Schaeffer’s statement to that effect. “I’d say that from a defense point of view, it avoids the outliner verdict, which is ultimately overturned in a costly and long process,” said Schwartz, also ATRA’s general counsel and a partner in the Washington office of Kansas City, Mo.’s Shook, Hardy & Bacon. But he added that more professionals on juries would allow a “plaintiff [to get] an honest and balanced view from jurors [who would] not get swept away by a silver-tongued defense attorney.” Jury scholar Shari Seidman Diamond, a law professor at Northwestern University, thinks it’s a great idea to have supplemental earnings of at least $40 a day, but is disturbed by the unequal distribution. “It has the effect of treating citizens differently,” said Diamond. “We try to minimize this during juror service — we tell them they’re all equal.” She fears that the new law might take the pressure off employers to pay their employees’ salaries. “In a perfect world, if the state uses someone’s services, they ought to pay, but they ought to treat everyone the same,” added Seidman, a senior research fellow at the American Bar Foundation. Business litigator Patricia Lee Refo of the Phoenix office of Snell & Wilmer, who chairs an American Bar Association project that is revising the organization’s jury standards, supports the pay provision because she hopes it will make jury service less of a hardship for small business owners, the self-employed and others.

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