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From 12 to 6 and Back Again: Illinois Supreme Court Strikes Down Statute Mandating Six-Member Juries in Civil Trials

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October 5, 2016

Client Alert
It is sacrosanct that either party to a civil lawsuit is entitled to a trial by a jury of their peers.1 The size of the jury, however, has not been deemed so important, with federal courts and many state courts employing six-person juries in civil matters. The Illinois Constitution is clear that the right to a trial by jury “shall remain inviolate” — but does a state law limiting the number of individuals required to serve on a jury interfere with this fundamental right?

The Illinois Supreme Court answered this question with a resounding YES in Kakos v. Butler, 2016 IL 120377, holding that Public Act 98-1132 (the “Act”),2 which limited the size of a civil jury to six persons, unconstitutionally infringed on the right to a jury trial.3 In Kakos the plaintiffs filed a medical malpractice action against the defendants. In response, the defendants filed a motion requesting a 12‑person jury and seeking a declaration that the Act was unconstitutional and thus invalid. Both the trial court and intermediary appellate court ruled in favor of the defendants, finding the Act’s provision regarding the size of a jury facially unconstitutional. Plaintiffs then appealed to the Illinois Supreme Court.

In affirming the lower courts’ holding, the Illinois Supreme Court found that Article I, Section 13 of the Illinois Constitution revealed “an intent on the part of the drafters to maintain common-law characteristics of jury trials” — with one of those necessary characteristics being 12 member juries. Id. at ¶¶ 13, 28. The Court traced prior decisions that repeatedly referred to the size of a jury when describing the “essential elements” of a “constitutional” jury in civil lawsuits and noted the legislative history of the Illinois Constitution indicated that the drafters intended for 12-person juries to be made available to the public. The Court also referenced recent studies “supporting the conclusion that decreasing the number of jurors corresponds to decreasing diversity of the jury and may impede the deliberative process,” as well as a U.S. Supreme Court case from 19784 recognizing that smaller juries “are less likely to foster effective group deliberation and that a positive correlation exists between group size and the quality of both group performance and group productivity.” Id. at ¶¶ 19-20. 

Defense lawyers likely regard Kakos as a victory for their clients. Larger juries are more mixed by age, race, gender, etc., and may deliberate longer, leading to greater consideration of the evidence, whereas a lesser sized group can be more susceptible to “emotional” devices and less prone to share ideas — all of which can benefit a sympathetic plaintiff at the expense of defendant.


  1. Unless unambiguously waived by contract.
  2. The Act, which amended 735 ILCS 5/2-1105(b), was passed days after Governor Bruce Rauner defeated former Governor Patrick Quinn and was seen by many as a nod to Quinn’s allies in the Illinois plaintiffs’ bar, given that 12 person juries were considered an advantage for the defense.
  3. Kakos does not prevent the parties to a civil lawsuit from consenting to a jury of less than 12 persons. See Id. at ¶ 24.
  4. Ballew v. Georgia, 435 U.S. 223, 232-39 (1978).

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