13th Nov 2017

If you were a party to a civil lawsuit, would you want a jury, or judge to decide your fate? Juries are typically seen as favoring the little guy, often the plaintiff. But maybe that perception is wrong. Researchers Valerie Hans and Stephanie Albertson found that “beliefs that jurors are highly sympathetic to individual plaintiffs and anti-business are not supported by empirical evidence.”[1] Juror sympathy for the little guy appears to be offset by antipathy for those who choose to litigate.

Some see jury trials as riskier and more unpredictable, viewing juries as more easily manipulated than judges, who would be more reasoned and dispassionate. But whether a single judge is more likely than a group of jurors to reach an aberrant result is debatable given that jury deliberations are tempered by a wisdom of crowds dynamic not in play with a judge (though others might say there’s a madness of crowds dynamic to consider too).

Then there’s the perception that juries overvalue monetary damage awards, but that may be wrong too. Hans and Albertson found that “media coverage and advertising campaigns have led to a gross overestimation of the typical jury award.”[2] That large awards are disproportionately featured in the news is not surprising. After all, who wants to hear about no cause verdicts? As Hans and fellow researcher Thomas Eisenberg explain, citing Nobel laureates’ Amos Tversky and Daniel Kahneman’s groundbreaking research, “the more readily we can call an instance of a phenomenon to mind, the more frequent we assume it is.”[3]

Jury trials are certainly more work for the attorneys, and cost more. The breadth of a jury trial is necessarily greater, more evidentiary issues arise, and opposing attorneys must research and argue over principles of law to be given as jury instructions before deliberations begin. Preparing jury instructions is demanding. That said, doing such work provides an important opportunity for good lawyering to make a difference in advancing a client’s cause.

Do juries get it right? The data says yes. A whopping 98.6% of 594 federal trial judges surveyed thought that jurors did “very well” or “moderately well” in reaching a just and fair verdict.[4] Most telling, however, were their answers to this question: “If you were personally a litigant in a civil case, how would you prefer the dispute be decided?” By a 3 to 1 margin they preferred juries over judges.[5] Why this result? Maybe they see that the group dynamics of juries really work. Maybe it has to do with the law’s growing complexity, judicial caseloads, and the effects of something known as “decision fatigue” about which some interesting research is being done.[6] Maybe the novelty and gravitas of jury service play a role. For whatever reasons, trial judges – who best know the risks of civil jury trials – seem to recognize that having well-guided groups of engaged, fresh decision makers pass judgment is often preferable to having individuals do so, even very talented judges. Perhaps they understand better than the rest of us the degree to which the work of judging can become more challenging once the bloom is off the rose.

 

(* Del A. Szura is a member of Szura & Delonis, PLC. This post is intended for general information and educational purposes and should not be construed as legal advice. All Rights Reserved. Copyright 2017.)

[1]Empirical Research and Civil Jury Reform,” 78 Notre Dame L. Review 5, at 1507 (2003), citing Valerie Hans, Business on Trial: The Civil Jury and Corporate Responsibility (2000), Yale University Press.

[2] Id. at 1522.

[3]The Predictability of Juries (2011), Cornell Law Faculty Publications, Paper 202.

[4] John B. Attanasio, “Foreword: Juries Rule” (2001), 54 SMU Law Review 1681, (See also, Allen Pusey, “Appendix: Methodology – State and Federal Judge Surveys” (2001), Id. at 1903).

[5]  Only 20.7% surveyed preferred a judge, 59.3% preferred a jury, and smaller percentages preferred arbitration, or said that it would depend on the case. Id. at 1684, fn. 15.

[6] S. Danziger, J. Levav, L. Avnaim-Pesso, “Extraneous Factors in Judicial Decisions” (2011), Proceedings of the National Academy of Sciences in the United States.

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