Vol. 3, No. 1. January, 2007
The Devil You Know <#the>
As Rummy would say, "We know what we don't know." <#as>
You can Always Hire a Professional <#you>
Meanwhile, back in criminal court <#mean>
Welcome to another year of The Jury Box. This one promises to be our
hottest yet! That's right, it's the global warming edition of The
Jury Box. So far, up here in Boston, we have had one day with high
temperatures below freezing. My brother-in-law's investment in a
snow-blower is looking a little silly about now. I'm sure the
blizzards must be right around the corner. At least George Bush is
willing to admit that global warming actually exists.
The legal climate is changing, too. The President has agreed to
submit his domestic wire taps to a judge, albeit a secret one,
employing an expedited, yet complex, procedure that Alberto Gonzales
seems unwilling (or unable) to explain to Congress. A member of the
administration urged companies and law firms not to hire attorneys
who defend detainees at Guantanamo Bay, essentially calling them
traitors. Check out Daniel Coquillette's excellent op-ed in the
Boston Globe, drawing parallels to the lawyers who defended British
officers after the Boston Massacre of 1770.
Medical malpractice awards are falling and people are finally coming
to grips with the possibility that the torts crisis might never have
existed in the first place. Several states have adopted significant
jury reforms in the past year (plain English instructions, jury
questions, note-taking, etc.), while others re-examine their
commitment to capital punishment. I'll try to help you keep up with
the changing tides.
/-- Edward P. Schwartz/
Much ink has been spilled about the "vanishing jury trial." (See
e.g. Massachusetts Lawyers Weekly, November 27, 2006.) It seems
strange to talk about a dearth of jury trials when the backlogs at
most courthouses are longer than ever. Of course, if there are more
lawsuits than ever, and they typically take longer to try, the
dockets can get crowded while the percentage of cases going to a jury
actually declines. For this discussion, I will take it as given that
fewer cases (as a percentage) are going to jury trial. I want to
review some of the suggested causes for this decline and then discuss
The Devil You Know
While many cases avoid going to trial because of the use of
alternative dispute resolution techniques, the primary reason for the
reduction seems to be that more cases are being settled before trial.
Some have suggested that the evolution of a highly-skilled and
experienced industry of professional mediators has increased
settlement rates, largely by providing the parties with an expert and
objective evaluation of how a jury is likely to react to a case. Along
similar lines, as more litigants employ jury consultants, they enter
settlement discussions with realistic expectations of how their cases
play before a jury. The basic hypothesis here is that as litigants'
expectations about the outcome of a trial converge, it is easier to
At the opposite end of the spectrum lie the doomsayers, who claim
that lawsuits get settled because litigants are terrified of the
arbitrariness of jury verdicts. The logic goes that if a jury trial
is a complete crap-shoot, almost any settlement is preferable to
going to trial. While the potential downside of trial is clearly
worse for defendants (since the sky's the limit for damage awards),
plaintiffs (who are more likely to be individuals) tend to be more
risk-averse. The combined result is a desire by both sides to settle
rather than go to trial.
These explanations for increased settlement rates seem to be at odds
with one another. Are jury trials becoming more predictable or less
so? I would argue that the answer is "both." To understand this
seemingly paradoxical answer, it is important to focus on the kind of
uncertainty at issue in each hypothesis.
As Rummy would say, "We know what we don't know."
We seem to have made great strides in evaluating cases with respect
to which party is likely to win on the question of liability. Both
statistical models of case outcomes and mock jury studies have shown
good predictive power with respect to liability verdicts. When I have
run multiple focus group or mock trial panels for the same case,
almost never do two panels from the same treatment reach different
verdicts on liability. It is possible, of course, to affect the
verdict by changing the treatment. A big part of my job is to help a
lawyer find the presentation strategy that maximizes the likelihood
that the jury will find for her client. A particularly good strategic
shift can "flip" a case from a loser to a winner. The point here,
however, is that, given a fixed case presentation (and jury selection
technique), most juries will hand down the same verdict on liability.
Both mediators and jury consultants provide cover for the lawyer who
does not want to admit to her client that her case is a likely loser.
The lawyer can save face if a neutral expert breaks the bad news.
This facilitates settlement since the client has received an accurate
assessment of her chances in court, even if said assessment did not
come from her own lawyer.
Knowing which party is likely to win on liability does not resolve
all of the uncertainty of a jury trial, however. The devil's in the
damages. Empirical research has made significantly less headway in
predicting jury damage awards. The problem seems to lie in the
translation of juror objectives into dollar amounts. Even when two
mock juries seem to completely agree on what they want to compensate
the plaintiff for, and the extent to which they want to punish the
defendant, they can arrive at wildly divergent dollar amounts.
As I have discussed in an earlier issue of The Jury Box, juries tend
to adopt an "anchor and adjust" strategy for arriving at damage
awards. Anchors tend to be very malleable and juries typically have
little guidance (and even less experience) in translating "harm and
deterrence" into "dollars and cents."
So, we live in a world in which parties can often agree about how
likely the plaintiff is to win on liability, but they can have wildly
differing estimates of the likely damage award. In addition, neither
party will have much confidence in her estimate of that award. Each
party can derive comfort from a fixed settlement or an arbitration
award with a predetermined high-low agreement.
You can Always Hire a Professional
In addition to settlement, which always remains an option, many
cases avoid jury trial by opting for a bench trial or binding
arbitration. Either of these options can be agreed to by the parties,
or, in the case of arbitration, might be stipulated in a pre-existing
contract between the parties. Given the increasing popularity of
these jury-free options, it is interesting to examine whether they
perform any more reliably than jury trials.
Setting aside criminal trials, case outcomes from juries,
arbitrators and judges are remarkably similar. Juries actually find
defendants liable slightly less often than judges. On the other hand,
juries very occasionally hand down enormous damage awards that one
would never see from a judge. If one were to eliminate the top 1% of
jury awards, one would find that judges and juries tend to compensate
plaintiffs at similar rates.
In light of the growing insistence on arbitration by large companies
in contracts of adhesion (read the tiny print on the back of your
credit card statement), it is surprising to see that arbitrators are
actually more likely to find for the plaintiff than are juries. (See
Wittman 2003 for automobile accident cases and Delikat 2000 for
employment discrimination cases).
The main lesson from these findings is that the increased avoidance
of jury trials (via settlement, bench trial or ADR) seems to be
driven mostly by a fear of the unpredictability of jury damage
awards. Several recent, and ongoing, developments should serve to
mitigate that fear. First, research continues to show that other
decision-makers, such as arbitrators and judges, are subject to many
of the same heuristic foibles as are jurors. Second, empirical
studies show that these "professional" fact finders do not seem to
decide cases very differently than do juries. Third, most "outlier"
damage awards are adjusted down by judges, either immediately or upon
appeal. Fourth, the line of US Supreme Court cases including /BMW/ and
/State Farm/ have effectively capped punitive damages at ten-times
their compensatory counterparts. Finally, more and more attorneys are
choosing to focus their pre-trial jury research on the question of
damages, rather than liability. As such, I anticipate that we may see
a rebound in the use of jury trials in the next few years.
I have argued for some time that it is unfair to evaluate the
desirability of the jury system until we have a system in place that
maximizes the ability of jurors to do their jobs. This means treating
them with proper respect, instructing them in language they can
understand, and adopting procedural rules that maximize juror
comprehension of both the law and the facts. After almost a thousand
years of jury trials, we are inching our way closer to implementing
such a system.
Meanwhile, back in criminal court
In their seminal work, /The American Jury (1966)/, Kalven and Zeisel
reported on a study comparing jury verdicts in criminal cases with
what the presiding judges would have done in the same cases. The
basic result was that judges agreed with virtually all convictions,
/but disagreed with more than half of jury acquittals/. This study
was replicated in 2005 by Ted Eisenberg and others, using data from
modern trials. It is remarkable how closely the modern results mirror
those from more than fifty years ago.
Perhaps even more remarkable are the results reported by Andrew
Leipold in his study of /federal/ juries and judges. It turns out
that while the conviction rate before federal juries was 84% over a
fifteen-year span, it was only 51% before federal trial judges. In
light of these numbers, (being in contrast to the studies using state
data), Leipold asks the sensible question, "Why are Federal Judges so
Acquittal Prone?" (2005)
This discrepancy has not always existed. While conviction rates for
federal juries have been climbing steadily since at least the 1940s,
the precipitous decline in judicial convictions really began in the
1980s. The greatest puzzle in the data is that the percentage of
federal defendants choosing jury trials has been rising along with
juridical conviction rates. So, why are defendants increasingly
choosing to go before juries that are likely to convict them? Before
you start citing Federal Rule 23, consider that Leipold found that
virtually no federal jury trials resulted from a prosecutor denying
the defendant a bench trial.
Unlike in the two other studies, here, judges and juries heard
different cases. As such, it is important to correct for selection
effects. That is, certain types of cases likely go to juries more
often than others. In order to compare "apples to apples," Leipold
had to account for these effects in his statistical model. He found
that "public order" crimes have particularly low conviction rates,
with a wide disparity between juries and judges, and these cases make
up /more than two-thirds/ of federal bench trials. Exploring further,
Leipold discovered that a full 50% of bench trials were for
misdemeanor traffic offenses. Absent these, the conviction gap was
84% to 60%.
The most compelling explanation that Leipold uncovered was the
chilling effect of the Federal Sentencing Guidelines. As judges were
required to impose harsher sentences for relatively minor offenses,
they exhibited an increasing reluctance to convict. It will be
interesting to see how the holding in /Booker/, making the guidelines
entirely advisory, will affect future conviction rates for federal
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