MEDIA CONTACT: Pat Vaughan Tremmel at (847) 491-4892 or p-tremmel@northwestern.edu

September 9, 2003

Juries Out of Control? Think Again

CHICAGO --- 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 Northwestern University 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.

Other facts from jury research cited in the article:

• Contrary to the belief that the jury fails to draw on middle and upper class citizens, a comparison of demographic characteristics of the adult citizenry of a geographic area with the corresponding jury pool from that region reveals a systematic under-representation of minorities, younger individual and those at lower income levels.

• Overall jurors attempt to arrive at the most plausible reconstruction of events by pooling their assessments of the incomplete and conflicting stories that the witnesses tell.

• Jurors do not generally impose unjustified liability on “deep pocket” defendants; they do hold corporations to a higher standard of care than individuals of similar wealth.

• The longer the trial, the longer the discussion tends to be before jurors take a vote, suggesting a heavier evidentiary load leads to more processing time before a verdict is reached.

• Though accounts of jury fact-finding generally are favorable, optimal decision making is threatened by persistently opaque jury instructions, and highly technical evidence presents a challenge to both jurors and judges.

“Despite a large body of research showing that instructions can be clarified and understood, jury instructions often fail to provide adequate instruction on the applicable law,” Diamond concludes. “When the law does not comport with the jury’s intuitive understanding of legal standards, the jury can be led astray.”

Yet, the research shows that jurors typically reach justifiable results.

To illustrate why the perception is otherwise, Diamond also deconstructed the infamous McDonald’s case. Stella Liebeck, the plaintiff in the real, headline-making case, sued because the coffee that spilled in her laps was too hot. She got millions, but most media accounts failed to tell all the critical facts that influenced the verdict, according to Diamond.

The 79-year-old Liebeck was a passenger in her adult grandson’s car, which was parked by a curb in the McDonald’s parking lot. When she attempted to remove the lid from the just purchased coffee, it spilled in her lap. The scalding coffee caused third-degree burns, requiring hospitalization and skin grafts and resulting in severe pain and partial disability for up to two years following the accident. The disfigurement from the coffee was permanent.

McDonald’s had specified that coffee should be served between 180 and 190 degrees, and experts confirmed that liquids at that temperature can cause highly painful and disfiguring third-degree burns. McDonald’s had not changed the temperature of the coffee, despite more than 700 complaints about related injuries throughout the previous decade. And on the eve of trial, McDonald’s turned down the mediator’s recommended settlement of $225,000.

Thus, though the McDonald’s case has become a widely cited example of frivolous law suits, post-trial interviews indicated that the jurors, who initially thought the case was a waste of time, became convinced that McDonald’s had callously disregarded the danger of the hot coffee.

Diamond, who has a law degree from the University of Chicago and a Ph.D. in social psychology from Northwestern, is analyzing a variety of jury behavior through a reform in jury decision-making that allows jurors in Arizona to discuss evidence among themselves during the trial -- rather than only during deliberations. The project allowed cameras in the courts and provided the first opportunity to examine a sample of jury deliberations in 50 civil cases directly.