FACTS ABOUT CIVIL JURIES IN THE UNITED STATES
Corporations and their insurers have been at the forefront of attacks on civil juries in recent years. These business interests seek to limit their liability exposure by proposing to take compensation judgments away from juries. They seek to limit the power and authority of the civil jury, and in some cases, to replace the civil jury system with a statutory structure over which their political action committee money can have more control. To accomplish such goals, these special interests like to argue that juries are too generous, that they decide cases based on sympathy not the merits, and that they are anti-business. But credible and objective studies of juries find otherwise. Stephen Daniels and Joanne Martin, authors of a recent, exhaustive analysis of juries, found there to be "little or no empirical information available regarding many of the claims made by the reformers about juries and the civil justice system." Civil Juries and the Politics of Reform (1995).
Jury verdicts are rational and reflect continually evolving community attitudes about corporate and government accountability. When the U.S. General Accounting Office looked at jury verdicts in a 1989 study, it found that "total awards for compensatory damages show a strong relationship to the severity of the injury and the underlying economic loss." Product Liability: Verdicts and Case Resolution in Five States, General Accounting Office, 1989. See also, Bovbjerg, et al., "Valuing Life and Limb in Tort: Scheduling ‘Pain and Suffering,’" 83 N.W. U. L. Rev. 908, 921-24 (1989). Similarly, in his research, author John Guinther found that in reaching a verdict, juries factor in a number of practical considerations. If the award is higher than the plaintiff’s proven damages, "it usually arises from the intent to punish or to identify societally unacceptable conduct, not to promiscuously pick some insurance company’s pocket." Guinther, The Jury in America (1988), p. 57. For example, the foreman of the Houston, Texas jury, which assessed $10.53 billion against Texaco for improperly interfering with a merger between Pennzoil Co. and Getty Oil, was clear on this point. In a post-trial interview he said, "We wanted to send a message to corporate America that they can't get away with this type of action and not be punished." But if anything, juries tend to undercompensate victims for their damages. In his analysis of a number of studies comparing loss replacement rates in product liability cases, scholar W. Kip Viscusi concluded that, "the common belief that product liability awards lead to windfall gains is erroneous. ¼ The actual value of court awards and settlements is ¼ often less than the actual losses suffered by the victim." Viscusi, "Towards a Diminished Role for Tort Liability; Social Insurance, Government Regulation and Contemporary Risks to Health and Society," 6 Yale J. on Reg., 65, 95-97 (1989).
The deliberative process enhances jury competence. In studying data from hundreds of jury trials and jury simulations, professors Valerie P. Hans and Neil Vidmar found that juror incompetence is a rare phenomenon. This is because the deliberative process allows jurors to pool their collective memories, allowing them to recall and analyze the evidence and the law. One study examining jurors' memories for facts and law found that a jury’s collective memory was large, recalling 90 percent of the evidence and 80 percent of the instructions. Difficulties in understanding the judge's instructions were often cleared up during deliberation. Hans and Vidmar also found "much evidence that most people, once actually serving in a trial, become highly serious and responsible toward their task and toward the joint effort to deliberate through to a verdict." Hans and Vidmar, Judging the Jury (1986). John Guinther's review of jury studies dating from the 1950s indicates that "jury discussions are highly serious, highly relevant, and highly concerned with the facts of the case." Similarly, in their 1971 landmark work The American Jury, frequently cited in Supreme Court and lower court decisions, University of Chicago professors Harry Kalven and Hans Zeisel found that because juries operate by collective recall, they remember far more than most of its members could as individuals. Also, "most people, once actually serving in a trial, become highly serious and responsible towards their task."
Studies show that juries often reach similar results as legally trained arbitrators or judges. In a controlled experiment, professors Neil Vidmar and Jeffrey Rice compared the assessment of pain and suffering damages made by 21 experienced arbitrators and by 89 typical jurors. The results demonstrated that laypersons’ reasoning was similar to those who are legally trained and that jurors were no more generous than judges in awarding non-economic damages. Vidmar, Rice, "Assessments of Noneconomic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals," 78 Iowa L. Rev. 883, 891 (1993). Harry Kalven and Hans Zeisel analyzed jury behavior by comparing jury verdicts and judges' opinions in approximately 4,000 civil trials, and found that judges and juries agreed on the verdict 78 percent of the time. In 10 percent of the cases, the judge favored the plaintiff and the jury the defendant; in 12 percent, the judge favored the defendant and the jury the plaintiff—roughly balanced. They found it "quite striking ... that the overall level of agreement between jury and judge is roughly the same whether the business is criminal or civil." Kalven and Zeisel also found no relationship between the difficulty of the case, and judge/jury agreement, finding agreement just as often in difficult cases as in easy cases. When judges spoke of why they believed juries differed from their own views, the judges rarely said the juries failed to understand the case. In fact, some judges have written that trial by jury in complex cases actually sharpens the lawyers' presentation of their cases, allowing not only the jurors, but the judge to understand them better. See, Higginbotham, "Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power," 56 Tex. L. Rev. 47, 54 (1977); "Comment, Right to Jury in Complex Litigation," 55 Tulane L. Rev. 491, 508 (1981).
Juries are not "anti-business." Professor Valerie P. Hans’s study of actual jurors in business cases revealed that jurors are not "anti-business." Hans said in an interview that she had "read the literature about how juries were hostile to business and ever-ready to find against deep pockets. But I found that there was a great deal of scrutiny [by jurors] of the plaintiff. Had the paraplegic plaintiff done enough to rehabilitate herself? What was the assumption of the risk? I found that the ‘Robin Hood’ jury theory is exaggerated. There may be a few cases where a jury is overwhelmed by sympathy for a badly injured plaintiff, but it is definitely more the exception rather than the rule." Interview with Valerie P. Hans, cited in Nader, Smith, No Contest: Corporate Lawyers and the Perversion of Justice in America (1996), p. 278.