Yesterday the Tenth Circuit vacated a district judge’s decision to adopt an advisory jury’s findings of fact without entering findings and conclusions of his own.  An advisory jury, the court pointed out, doesn’t find the facts in a bench trial, and its advisory verdict doesn’t relief the trial judge of his obligation under Rule 52(a) of the Federal Rules of Civil Procedure to "find the facts specially".  OCI Wyoming, L.P. v. PacifiCorp, No. 06-8026 (10th Cir. Mar. 7, 2007).

Blawgletter regards the outcome as unremarkable — Rule 52(a) plainly requires the judge to find the facts and explain her reasoning — except for the court’s instruction that on remand the trial judge must do his work "without giving deference to the advisory jury’s verdict."  Slip op. at 13.  If the judge can’t defer to the advisory jury, why impanel one at all? 

According to the Wright & Miller treatise on federal procedure, the practice of getting non-binding advice from jurors has "ancient" origins.  Judges have sometimes used advisory juries to help try cases where they couldn’t tell for sure whether a right to jury trial existed.  The belt-and-suspenders approach helped avoid retrial.  And judges and litigants may simply feel better about a judgment if it agrees with what a jury would have done in the same case. 

Barry Barnett

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