Archive for the ‘Challenges to the jury system’ Category
Despite the constant headlines about frivolous lawsuits and ridiculously high awards, when the GAO came out with a report on lawsuit awards back in 2003, it received little fanfare even though it strongly contradicted media reports of excessive jury awards. The same results have been seen every year. Now it’s 2011 and we’re hoping a new report gets a bit more attention.
This time it’s a report from the Center for Justice and Democracy, a nonprofit consumer group. The Center uses data from the Department of Justice and other sources to point out that juries seldom award punitive damages in addition to compensatory awards. Further, when punitive damages are awarded, they tend to be fairly modest (a median of $64K in 2005).
Key findings from civil trial data in the nation’s 75 most populous counties include:
“Winning plaintiffs received punitive damages 6 percent of the time in 2001, and 5 percent of the time in 2005.
From 2001 to 2005, the percentage of successful medical malpractice plaintiffs awarded punitive damages dropped from 4.9 percent to 2.6 percent.
From 2001 to 2005, the share of winning plaintiffs awarded punitive damages in product liability trials dropped from 4.2 percent to 1.3 percent.”
Hardly an example of runaway juries. In fact, as author Emily Gottlieb says,
“The availability of punitive damages protects us all by holding wrongdoers accountable for egregious misconduct and deterring its future occurrence. Laws that restrict punitive awards place the public at serious risk, and lawmakers should not be misled by falsehoods spread by corporate special interests about this most valuable and important feature of our civil justice system.”
We all like to think we are independent thinkers, assessing the facts and evidence before us and drawing conclusions that make sense based on new information that comes in. If you, like us, have spent time observing through darkened windows while focus groups or mock juries deliberate (and eating way too many M&Ms) you know it isn’t true.
We hope you’ll read the complete report from the Center for Justice and Democracy here. And that you’ll forward the report to your friends and to opposing counsel. That you’ll blog about it. We need to spread the word. Don’t let history repeat itself. Spread this new report far and wide.
Gottlieb, E. (2011). What you need to know about punitive damages. Center for Justice and Democracy.
I was flattered to be invited to address the Eighth Circuit Judicial Conference last week, on the topic of “Social Networking and Other Evils of the Internet in Jury Trials.”. I joined US District Judge Donald Molloy (Montana), Andrea Henson-Armstrong (Federal Judicial Center in DC) and Tom Waterman (Lane & Waterman, PC, Davenport, IA) in our discussion of the issues, including the ways that jury instructions are being revised and why some jurors appear to refuse to abide by the admonitions of the court. I also provided an updated and expanded version of the 2009 KTC paper on this subject, which includes current case law and proposed versions of jury instructions. You are welcome to a copy of the paper here.
Judges like to be listened to and obeyed. No surprise there. Part of my hope is that through the panel presentation, the judges were able to understand how society has changed over the last couple of decades, and how technology has become so second-nature to American citizens that many juror rule infractions are unconscious, while most others are well-intended, even if uninformed. If the goal is to achieve higher compliance among jurors, we will need to do a better job in readying them for their duties.
There are two main categories of violators of judicial admonitions regarding use of technology among jurors.
• The Innocent and Oblivious. Most who don’t follow the court admonitions don’t realize they are breaking the law. After spending the evening surfing the internet, they would tell the judge “I didn’t do research! I haven’t been to the library in years!”
This group needs to be clearly and fundamentally informed of the myriad ways we do research, including “just looking stuff up on the internet”. Use common language. Use personal examples. Explain why it is important, and don’t stop with the issuance of behavioral demands. Judicial edicts will not help this group obey the rules.
• The Angry and Defiant. This second group is more problematic. They include the subset of Americans who are angry and mistrustful of all branches of government, especially Federal. The judiciary is not immune from their anger, and there is a great deal of suspicion about the validity of the court’s authority, and the rules by which the court plays. “I hear what you are saying, but I will decide for myself what justice requires!”
To solve the challenge of this group, the court has to conduct, or otherwise allow, meaningful voir dire. Asking rhetorical questions about whether they will “follow the law as given to them” is not useful, and for the Angry/Defiant jurors it is an example of the problem, not the solution. If these people can’t feel that following the rules is an extension of their values and their beliefs, they can’t be counted on to abide by the rules or respect the judicial process. Send them home.
Also discussed during the panel discussion were problems with discoverability due to electronic open records, and the challenges associated with the fact that some jurors look up court documents, and some do searches on potential witnesses, parties, attorneys, and judges. Reference was also made to a chilling article recently published in the New York Times, “The Web Means the End of Forgetting.”
The program was, in many ways, cautionary. We all spoke as advocates and defenders of jury trials, and out of the conviction that it is not necessary for Web 2.0 to be another nail in the coffin of citizen participation in justice. The word needs to get out that the jury system is not anachronistic, but some of our traditions (edicts instead of explanations) and assumptions (judges are obeyed) clearly need to be revisited. If the federal judiciary is listening (and they were!), there is hope.
March has been a big month for juries in the news. Our last post on Twittering jurors was still fresh when the uproar over the issue of peremptory strikes began.
The original article proposing the elimination of peremptory strikes was published in the Wall Street Journal but the debate immediately hit law blogs all over the internet. Doug wrote this letter to the editors of the Wall Street Journal and it was also published in the March, 2009 issue of The Jury Expert.
Fairness, Justice and True Understanding:
The Benefits of Peremptory Strikes
by Douglas L. Keene, PhD
[President, American Society of Trial Consultants]
Your article of March 5, 2009, “Three Strikes and You’re Out? Critics Seek Juror-Dismissal Cap”, by Nathan Koppel, raises important questions about fairness and justice in the court system, but it ignores many dimensions of voir dire and the use of peremptory strikes that are crucial for true understanding.
As a psychologist and litigation consultant (and current President of the American Society of Trial Consultants), I am intimately aware of the complexity of discerning bias, and the affect that such bias might have on jury decision-making. Prof. Baldus makes some assumptions in his paper that are superficially tempting but not factual.
First, demographic differences, including race, are not normally the best predictors of juror attitudes. Our senior membership is asked to teach scores of education programs at law schools and legal seminars every year, and this is one of the consistent messages. If all you look at is the race of jurors, you are likely to over-simplify their attitudes, which are not usually driven by race at all.
What drives juror decision-making are core values, life experiences, and the way the juror views the world. There can be an intersection of these factors with the experience of living in a crime-ridden neighborhood, or having a friend who was assaulted, or not feeling that the police have the right amount of authority, for instance, but those attitudes transcend race. The same worries can exist equally in a white suburban homemaker as in an African-American urban retiree, and they could be the cause of a peremptory strike by the same trial lawyer.
One of the unfortunate trends in recent years is that courts have reduced the amount of time allowed for questioning jurors, and this raises the tendency to rely on demographics to ‘guess’ where to find bias, instead of actual information. Beyond that, in a world where people are struggling to keep up with mortgages, we lose far more jurors to the crisis of economic hardship than we do to peremptory strikes. The poor and those in vulnerable jobs (often under-represented in the venire under any circumstance) are thus least likely able to afford jury service.
Racism does exist, and racial stereotypes are out there, among the public and among some trial lawyers. What is far more important in jury selection is to understand whether those attitudes and biases are going to affect juror decision-making, and what the effect will be.
I am reminded of a research group I conducted on a personal injury case in which members of a Mexican-American family were severely injured in a motor vehicle accident. When considering damage awards, two jurors demurred that the medical, rehabilitation and lost wages damages should be very low, because the family (who had lived in the US for decades) might just go back to Mexico. Should we have been limited in our peremptory strikes? These people were not subject to a strike for cause, and in their hearts they did not feel themselves to be biased.
In an Alabama court, an entire community of African-Americans was suing for damages related to a massive chemical spill. One of the peremptory strikes was used for a white woman who sat at an angle in her chair for 3 hours during jury selection, never once even acknowledging the presence of the African-American juror to her left, while talking freely with all of the white jurors sitting around her. She denied any bias related to the race of the Plaintiffs, yet she could not even acknowledge the woman sitting 8 inches to her side.
Without peremptory strikes, fairness is what is lost. Americans are the beneficiaries of a system that is under a dynamic tension, with the considerations of the trial court under the scrutiny of an appellate system that keeps its eye on global ramifications, as well as those specific to a particular case. However imperfectly this legal system works, it does generally work very well. The unintended consequence of changes that Prof. Baldus proposes, and which Mr. Koppel appears to embrace, are that far more racial bias, as well as prejudice of other kinds, will overwhelm justice. Peremptory strikes are not merely a favored anachronism, they are an essential part of the justice process.