January 8, 2004

Juries out of control? Think again

By Pat Vaughan Tremmel

The debate over whether the civil jury is out of control has brought countless tales of outrageous awards by jurors only too willing to clean out the pockets of defendants, especially the deep pockets of corporations.

Maybe you heard the one about Kathleen Robertson of Austin, Texas. According to a widely distributed e-mail listing of outlandish jury verdicts, a jury of peers awarded Robertson $780,000 after she broke her ankle tripping over a toddler who was running inside a furniture store. The noteworthy twist is that the misbehaving toddler was Robertson’s very own little boy.

That and the six other eyebrow-raising cases listed in the ubiquitous e-mail offer dramatic support to critics of the civil jury and advocates of tort reform.

But there is one major problem. None of those cases actually exists. Not one of them could be located in court records, jury verdict reporters, contemporaneous news accounts or even through local bar association tort committees.

So why do so many people, even a sophisticated attorney involved in circulating the e-mail, so easily believe the wild jury verdicts are true?

Shari Diamond, a professor at the School of Law, attempts to answer that question in “Truth, Justice and the Jury,” an article published in the Harvard Journal of Law & Public Policy. She takes a close look at “the truth” about the jury and its ability to get at “the truth,” comparing information ordinary citizens received from the media with data that emerge from systematic studies of jury decisions and decision-making.

Because media reports generally focus on the unusual case or verdict, the popular image of jury behavior that emerges is skewed in the direction of exceptional cases, according to Diamond.

In addition, news stories about actual jury verdicts provide incomplete and potentially misleading descriptions of the evidence that the jury heard and, due to the secrecy of the deliberations, only limited information on how the verdict was reached.

Diamond’s article offers scholars’ evidence that contradicts the impression conveyed by the e-mail cases through archival studies of jury verdicts, post-trial surveys of jurors, surveys of jury observers, such as judges and attorneys, and simulations.

In tort cases decided by juries, for example, a study of court files in the 75 most populous counties reveals that plaintiffs prevailed at trial in an average of 48 percent of cases. Diamond contrasts the 48 percent figure with the content analysis of five national and popular business magazines, showing an overrepresentation of the plaintiff victory rate before juries in tort cases at 85 percent.

“The distorted distribution of plaintiff verdicts that emerges in media coverage can lay the groundwork for enticing even sophisticated consumers with urban legends,” Diamond said.