Recovering the Historical Jury: The Georgia Supreme Court Points the Way

Last week, the Supreme Court of Georgia issued an important decision regarding the right to trial by jury, Clark v. Leigh. The case concerned caps on damages in medical malpractice cases, an issue on which reasonable minds may disagree. But the Court’s broad understanding of jury authority is one all supporters of liberty should celebrate—and that criminal defense lawyers in particular should build upon.

The Clark case arose after a Georgia woman died from surgery complications. A jury determined that the doctors had committed medical malpractice and awarded the woman’s family nearly $30 million for wrongful death, $2.5 million for her pain and suffering, and a little under $2 million for medical expenses. Pursuant to a Georgia statute capping “noneconomic” damages in medical malpractice cases, the court reduced the wrongful death damages to $350,000. The family challenged the statute under the state constitution, which reads in relevant part: “The right to trial by jury shall remain inviolate … and the jury shall be the judge of the law and the facts.”

In an opinion written by Chief Justice Nels S. D. Peterson, the Court unanimously sided with the family. Its decision depended partly on a 2010 case striking down statutory caps on damages for pain and suffering, Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt. Nestlehutt traced the Georgia Constitution’s right to trial by jury back to English common law. It noted common law recognized precursors to medical malpractice suits and afforded juries trying them the right to determine damages. Because the statute at issue “clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function,” the Nestlehutt Court struck it down as a violation of the right to a jury trial.

The doctors in the Clark case asked the Court to overturn Nestlehutt. It declined to do so. Noting the uncertainty among the Justices as to whether Nestlehutt was rightly decided, they all agreed that it was entitled to respect as precedent (stare decisis) because it was not clearly wrong. 

Whatever mixed enthusiasm Nestlehutt received in the Court’s deliberations, Clark sets out a broad understanding of the historical prerogatives of juries. It holds that the right to trial by jury “has a substantive component and is not merely a procedural right.” Ignoring the historical prerogatives of juries “would be hollow and illusory.” Rather, jury findings of fact must “be given legal effect”—they must carry power that statutes cannot remove. The Court cited William Blackstone for the principle that once a jury finds “any flagrant violation of another’s right,” then “the law must of course redress it.” 

Officials lack the authority to negate the constitutional role of the jury. At common law, the right to jury trial was a limit on judges (though Parliament had complete sovereignty in the absence of a written constitution). In the independent United States, constitutionally enshrined jury rights like Georgia’s were understood to check “abuse of power by government actors generally,” including legislators.

The Clark Court concluded that a statute violates the state constitution if it curtails “the scope of the right as it existed at common law.” While the Court distinguished judicial damage reductions through remittitur and the power to grant new trials as valid ways of curbing excessive awards, it invalidated the statutory cap on noneconomic medical malpractice damages.

Advocates should take Clark—and its historical findings, many of which are not limited to the Georgia law—as an invitation to explore the historical role of juries and challenge modern rules that are incompatible with it. This is especially so for the criminal defense and civil rights bar, as a number of legal developments restrict jury power for the benefit of the government. First, Clark is clear that the right to trial by jury includes the right to have jury findings given legal effect. Acquitted-conduct sentencing contradicts this. Under that practice, a judge can sentence a defendant for conduct she finds by a preponderance of the evidence that he committed—even if the jury explicitly acquitted the defendant of it. Federal courts approve of this. While Georgia appellate precedent concerning it appears scant, Clark is a strong argument against allowing it.

Second, Clark quotes Blackstone for the rule that where someone violates another’s right, the courts should provide a remedy. Federal law contains a mess of doctrines that thwart this where the rights violator is a government official, including qualified, prosecutorial, and judicial varieties of immunity. The Georgia Constitution actually goes even further, presuming that the state and its officers have broad sovereign immunity. Yet Clark provides an important reminder that these privileges sit uneasily alongside the ancient doctrine that every right carries with it a remedy for injuries to it—and the value the Founders placed on trial by jury as a protection against government abuse.

Lastly, in a footnote, the Clark Court observed that its precedent may have overly discounted the Constitution’s direction that “the jury shall be the judges of the law and the facts.” Georgia courts have held since at least 1940 that this language means only that juries can apply the law as given by the judge to the facts as they find them. In other words, “the Constitution’s language does not mean what it appears to say,” as then-Justice Peterson wrote questioningly in the earlier concurring opinions to which the Clark footnote cites. The history to which Clark points adds reasons to doubt this precedent. Several common law cases that were important to early American understandings of the right to trial by jury, including those of John Peter Zenger and William Penn, featured jurors who acquitted defendants based on their own understandings of the law—ones judges disagreed with but were powerless to override.

While Clark is a civil case and relies on Nestlehutt, its research and holding concern the common law as a whole. The decision is a challenge to the bar and bench to recover the historical understanding of jury prerogatives. It deserves pride of place among recent Supreme Court of Georgia decisions taking originalism and the particularities of the state constitution seriously, an enterprise Chief Justice Peterson has encouraged in scholarship as well as important opinions. The Clark Court determined that medical malpractice damage caps cannot comport with the common law contours of the jury trial. Criminal defense and civil rights attorneys should welcome it as a way to revive juries for the benefit of their causes, too.

Reprinted with permission from the June 30, 2026 issue of Daily Report © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877–256-2472 or asset-​and-​logo-​licensing@​alm.​com.