The jury system began in 1189 in the first year of the reign of Henry II. Before that, they didn't have juries, but if you could find 12 people to support your case, you'd be released. Since then, it evolved from the 12 being witnesses to 12 deciding on the facts. More esoteric theorists speak of 12 signs of the zodiac giving a complete view and some prominent trial lawyers have attributed it to the number of Apostles.

Nevertheless, on 12/19/14 Illinois Governor Pat Quinn signed into law Public Act 098-1132. The new law amends the Illinois Code of Civil Procedure pertaining to jury demands. Under the amendment, the number of jurors in all civil cases will be limited to six. This is a reduction from twelve jurors in cases in which the claim for damages is at least $50,000. This amendment applies to all cases filed after June 1, 2015. In cases filed prior to June 1, the parties will still have a jury of twelve.

The amendment also states that if alternate jurors are requested, an additional fee established by the county shall be charged for each alternate juror requested. Therefore, if a party wants an alternate juror, the party will have to pay the fee. The amendment is also silent as to how many alternate jurors can be requested. However, under the section of the Illinois Code of Civil Procedure pertaining to peremptory challenges and alternate jurors, which was not amended, it states that the court may direct that one or two jurors in addition to the regular panel be impaneled to serve as alternate jurors.

It is somewhat unclear what happens if neither side makes a request for alternate jurors and then one or more jurors are unable to perform their duties. It is certainly not uncommon to lose one or even two jurors during a medical malpractice trial. Is it a mistrial if the parties are left with possibly only four jurors to reach a verdict? The argument against a mistrial would likely be that alternate jurors could have been requested.

Before the Senate voted on this bill, which was an initiative of the Illinois Trial Lawyers Association, the Illinois Association of Defense Trial Counsel (IDC) wrote a letter to the Senate in strong opposition to the bill. In the letter, the IDC wrote that reducing the number of jurors in civil cases will substantially harm the civil justice system and any cost savings achieved by having smaller jury panels will be outstripped by the increased costs associated with more unpredictable judgments caused by fundamentally changing jury deliberations through the loss of juries that accurately reflect the community.

The IDC further wrote that juries with half as many members are substantially inferior to the current jury system for three specific and common sense reasons. First, juries of six members do not have the ability to recall the evidence heard at trial as well as a jury of twelve. This failure of recall will substantially affect the result of a trial without the parties even being aware of it. Second, reducing the number of jurors creates a greater chance that one person will dominate the deliberations and that the verdict will not accurately reflect the will of the whole jury. Third, a group of only six jurors increases the possibility that the jury pool will not accurately reflect the diversity of community in which the trial is held.

The position of the IDC is supported by research. Research has been performed for many years to investigate whether there is a difference between six and twelve member juries. This research was performed following the Supreme Court's decision that Florida's use of a six member jury in criminal cases does not violate a defendant's Sixth Amendment right to a jury trial. See Williams v. Florida, 399 U.S. 78 (1970). In a 1997 meta-analysis, Michael Saks, PhD, MSL and Mollie Marti, PhD, JD identified several key findings from the studies. Smaller juries are more likely to contain no members of minority groups. Twelve member juries spend more time in deliberation. Twelve member juries deadlock somewhat more often. On the strength of at least two studies, twelve member juries accurately recall more trial testimony. Significantly, the research did not show that there is difference in verdicts (guilty versus not guilty) when there is a reduction in jury size.

The combined wisdom of twelve jurors often astounds trial lawyers when they ask jurors post verdict how they resolved the issues in the case. They tend to be much more creative and, yes, more logical than most lawyers in analyzing the issues. If there was cosmic significance in the number 12 we may be in for a disappointment. The amendment raises questions and concerns. We, and the IDC certainly have concerns. Time will tell.