N.J. Constitutional Convention: Vol. 4, Page 89

Wednesday, June 25, 1947 (Morning session)

have just said in answer to Mr. Dixon's question, you seem to me, in my layman's mind, to be building up a case against the jury system. If it is so difficult for a judge to arrive at a just decision supported by the testimony of expert witnesses, and he has such great difficulty in arriving at an equitable decision, how do you expect a jury to sit in the box and render a decision on the spot, to say "yes" or "no," or fix the damages in all of these intricate problems that you are building up around the ability of a judge to decide?

MR. CONFORD: Well, that certainly is a very fair question and I don't think that anybody has had the temerity, or very few people have had the temerity, to even think of suggesting to this Constitutional Convention that jury trials in law cases be abolished. I mean, it's not the sort of thing you reason about; you feel that in the dispute of factual issues our traditions have proven that the judgment of a jury of 12 laymen is what the thirteenth layman on trial wants and expects, and won't be satisfied unless he gets it. We have all assumed that this Convention will merely write that into a new Constitution. I am not prepared today to argue for or against the abolition of jury trials.

MR. PETERSON: My question wasn't so intended. I am just going over in my mind your statement about the difficulty judges have to arrive at a decision, because in one day he may have an equity decision and in the same day a law decision. If there is a court created such -

MR. CONFORD: That wasn't my point, sir. The point that I was making was this - I was attempting to show that the argument for complete integration of our law and equity courts cannot result in the simple, streamlined result that is envisioned; that you will perpetually - as long as you preserve the right of jury trials in law cases, as I assume this Convention will - that you will perpetually, in every single litigation, be confronted with the necessity of determining, is this an equity case or is this a law case? Because if it is a law case, then it's the same type of case that it was prior to 1844 and 1776, when our first Constitutions were adopted; the jury trial must continue to be given. If it was not that kind of a case, then it's an equity case in which the judge can decide the factual questions for himself. The point I am making is that even under an integrated system you won't be able simply to walk into a court and have a judge proceed to take over the case and decide the matter in its entirety.

MR. PETERSON: I understand that - but after all the briefs of counsel are submitted to the judge, he has them before him, he has the pleadings of both sides and he, in my opinion, the learned judge can decide whether it's to be tried by a jury or by a court of one justice or two or three, whatever the case may be -

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