JURIES UNDER ATTACK
by
Phil Hardberger, Chief Justice, 4th Court of Appeals, State of Texas
For the past ten years, this country has witnessed a violent attack on the jury system. The premise of my talk is that this attack is wrong, dangerous, and without foundation.
Litigation reform rhetoric reached presidential-campaign status in 1992. Vice President Dan Quayle identified what he called a “litigation explosion,” claiming that the number of tort claims was skyrocketing and, along with them, the amount of money sympathetic jurors were willing to award undeserving plaintiffs.[1] Vice President Quayle did not specifically target juries, but the proposed reforms did: limits on jury awards for pain and suffering, for example, or the complete bar on punitive damages.[2] In fact, as the “most visible part of the legal system,” juries have been singled out as the symbol of the problems, real or imagined, in the legal system.[3] Reformers have made juries the subject of advertisements, testimony before Congress, and speeches to business groups.
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The attack launched by these reformers has initiated a national debate about the legal system, and, implicitly, a debate about the effectiveness of our juries. This debate has intensified in the wake of several high-profile criminal and civil verdicts, verdicts with which much of the public strongly disagreed.
In Texas, where a broad constitutional right to trial by jury has always been recognized, the debate has been waged, as well, and has resulted in tort reform legislation, passed in 1995. This legislation put a cap on what juries could award in punitive damages; imposed sanctions for the bringing of frivolous lawsuits; and limited the applicability of some consumer laws.
The Texas judiciary, who should always support the jury system, in my opinion, have on occasion joined the fray against juries. This is regrettable, and I strongly disagree. Since 1891, the Texas constitution has stated that no court above the court of appeals may reverse a jury’s determinations of the facts of a case. That means that, according to our constitution, the Supreme Court can review legal issues, but it may not question a jury on the facts. Indeed, even the court of appeals may overturn a fact determination only if it finds that the determination is against the overwhelming weight of the evidence. This is a strenuous standard, and it sends a strong message about our founders’ belief in the integrity of jury systems.
The Supreme Court, in recent years, has been encroaching on this constitutional provision. The Court has held that while it may not review facts, it may review the procedures used by the courts of appeals when they review those facts. Initially, the Court restrained itself to a review of whether the appellate court had applied the correct legal standard. Recently, however, the Court has ruled that it may also look at how the legal standard is applied to the facts. Many in Texas, myself included, believe that this is an oblique, but purposeful, approach in questioning the fact determinations made by a jury.
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Some members of our Supreme Court would go even further. In a recent decision by the Court, Justice Hecht suggested that the issue of whether an insurance company acted in bad faith when it denied an insured’s claim should be decided by a judge rather than a jury.[4] This suggestion, with which three justices agreed, would have far-reaching implications. It’s a bad suggestion. We have, as a state and as a nation, always valued juries for their ability to sift through various versions of the same story and to assess witness credibility. These advantages are particularly suited to determining whether someone acted in bad faith.
The legislature and judiciary aren’t alone in their distrust of juries. There is growing public dissatisfaction, as well. But public opinion is being shaped by a lack of information and, in some cases, unadulterated misinformation. The simple truth is that most people have not had much personal contact with the legal system. In a recent survey, only six percent of those responding mentioned actual jury service as a source of information about juries.[5] The rest got their information from the media and from formal education, in that order.[6]
In addition, much of what the public believes it knows about juries, it has gotten from the skewed representations of politicians who are often backed by special interest groups. These groups, understandably enough, are interested in winning their cases, not in the abstract pursuit of justice.
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Let us speak plainly. Not every case has merit. There are frivolous lawsuits. Not every defense to a lawsuit is much of a defense, either. Some parties deserve to win; some deserve to lose. Merit is not broken into plaintiff versus defense; it never has been. My point is not that one side or the other should win. In the words of the federal marshal in The Fugitive: “I don’t care.” My point is that juries have been able to figure out these things for a thousand years or so, and I want them to keep doing it.
Intrusions on the jury’s rights, whether by the legislative, judicial, or executive branches of government, are intrusions on the rights and privileges of free citizens. Every elected or appointed official runs the danger of falling into the arrogance of believing that they he or she knows more than the people who put them there. Bad mistake!
We swim in a sea of misinformation. Let us examine some of the more common claims about jury performance. Juries sit on every kind of human behavior: family disputes, business litigation, the environment, wills and probates, contracts, etc. Every attack on the jury system has ramifications in all these areas. But the criticisms are usually lodged only in the tort area, a small percentage of the cases tried in our courts. This discussion will necessarily center more on civil litigation than criminal and more on tort litigation because, for reasons stated, that is where the criticism has been focused. I also want to look briefly at one recent, high-profile criminal trial.
• There is an “explosion” of personal injury litigation
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Not so. Between 1995 and 1996, injury claims in Texas brought by consumers represented about 5% of new case filings in district and county courts. Three times as many new filings were made in the area of family law, and almost twice as many were made in the collections area, or contract law.[7] Nationwide, only 5% of new filings are tort claims.[8] Far from representing an “explosion,” the Texas figures actually represent a decline in tort litigation in the 1990s.[9]
• Juries in civil cases award too much money
This claim is fueled by media accounts of high-profile civil suits. But the accounts are often incomplete. For example, the media widely reported the jury award of nearly $3 million to a grandmother who sued McDonalds’s after she was burned by a cup of coffee she purchased at the take-out window. There was a great public outcry about that award. But the public didn’t hear everything that the jury heard in that case. The jury heard that the woman suffered third degree burns throughout her inner thigh area and was hospitalized for eight days, undergoing skin grafts and the removal of dead and damaged skin. The jury heard that McDonald’s had received more than 700 complaints over ten years by other people burned by its coffee. The jury heard that McDonald’s knew that its coffee was dangerously hot, and it did nothing. And the jury heard a McDonald’s representative testify that, in spite of the terrible injuries suffered by this woman and others, McDonald’s had no intention of reducing the holding temperature of its coffee, which at the time was 185 degrees. And, when this grandmother offered to settle with McDonald’s for $20,000, McDonald’s refused.
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You also may not have heard that the jury found the grandmother 20% liable for her own injury, and it reduced her award accordingly. The jury thought McDonald’s should be taught a lesson, too. It awarded the grandmother $2.7 million in punitive damages. This figure was based on McDonald’s coffee sales for two days. After the award, McDonald’s reduced its coffee temperature by thirty degrees.[10] A judge later reduced the jury award to $480,000.
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The goal of tort law is to make the injured person whole. We allow punitive damages only when the defendant has behaved so badly that we believe additional punishment might deter such behavior in the future. No one wants verdicts to go beyond what it takes to accomplish those goals. Jury verdicts, in fact, are carefully tailored to those goals. The inflated jury award is a myth. According to a 1994 study of jury awards, the average civil tort award nationwide was $62,000. The median Texas tort award is 45% below the national median.[11] Punitive damages, which are the focus of criticism by reform advocates, are rarely assessed, and when they are, they are fairly modest. A 1996 study by two Cornell University law professors and the National Center for State Courts revealed that juries award punitive damages only in the most extreme cases, and when they do award them, they carefully tailor their awards to the amount of compensatory damages awarded.[12] In other words, civil juries are doing a good job of determining what size award is needed to make the plaintiff whole and of determining when additional monetary punishment is called for. These determinations have made a difference. Jury verdicts removed from the market the Dalkon shield, an intrauterine birth control device that caused reproductive injuries to many women. They removed infant sleepwear made of highly flammable flannel. Jury verdicts made infant cribs safer and eliminated asbestos from our homes and workplaces. In fact, according to an estimate by the Consumer Federation of America, 6,000 deaths and millions of injuries are prevented each year because of the deterrent effect of product liability.
If you’ve bought a car lately, you know that jury verdicts have been influential in changing the atmosphere of that transaction from one of “buyer beware” to one of full disclosure. In the area of medical malpractice, jury awards for injuries to patients have resulted in increased follow-up visits and longer examinations.
• Civil Juries are Harder on Corporations and/or Doctors and Hospitals Than They Are on Individual Defendants
Numbers don’t bear out this claim. Recent research indicates that plaintiffs win civil suits against corporate clients only about half the time.[13] The same conclusions have been drawn in the area of medical malpractice, where plaintiffs win, on average, only 30% of the time.[14] In the wake of massive campaigns against tort litigation, plaintiffs begin their suits at an increasing disadvantage. A 1994 poll, for example, found that 75% of jurors questioned believed that jury awards are too high, and 75% of them believe that too many lawsuits are filed.
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A good example of the misinformation being spread to support the claim that juries are biased against doctors or corporations is the story of the psychic who won nearly $1 million after she claimed that she lost her psychic powers as the result of a CAT scan. The misleading claim is that juries are so sympathetic to plaintiffs and dislike doctors so much that they were willing in this case to pay out even on such an absurd allegation. However, the facts reveal that this is just another example of a distorted story. The truth is that, although the woman did claim to have lost her psychic powers, the judge in the case told the jury to disregard that claim. The basis for her award, instead, was the permanent brain damage the plaintiff sustained due to an allergic reaction to the dye that was negligently administered to her prior to the CAT scan.[15]
• Juries Are Incompetent
A 1994 Doonesbury cartoon depicted a woman in a jury box being questioned by a
lawyer. She had not yet been seated on the jury panel; the lawyer was still trying to determine if she would be a competent juror. The questioning proceeded:
Lawyer: Ms. Luckenblatt, are you a professional? A decision maker? Do you hold a position that carries any responsibility whatsoever?
Juror: Um . . . no. Not really.
Lawyer: Are you informed? Educated? Articulate? Do you have any opinions about anything? Anything at all?
Juror: Well, I’m . . . I’m not exactly sure.
Lawyer: She’ll do, your honor.[16]
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One of the more common allegations being made today is that ordinary citizens are not competent to hear the increasingly complex litigation that arises out of increasingly complex business transactions. The late chief justice of the United States Supreme Court, Warren Burger, believed some issues were simply too complicated for ordinary jurors. “Even Jefferson,” he said, “would be appalled at the prospect of a dozen of his stout yeomen and artisans trying to cope with some of today’s complex litigation.”[17]
Today, juries are called on to decide cases in areas as diverse as securities, environmental law, product liability, and antitrust law. The trials can last for several months and involve huge amounts of evidence.[18]
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Studies suggest, however, that juries are just as good as judges in deciding even complicated cases.[19] One study, for example, suggests that jurors do not resort to arbitrary methods of decision-making when confronting difficult cases. Instead, when jurors are confronted with evidence outside their common experience, they rely on “sensible techniques,” such as assessing testimony consistency or completeness and evaluating it against their knowledge of related matters. Juries are also likely to rely on the members of the jury who have more specialized knowledge of the subject matter.[20] Other studies suggest that jury verdicts, when compared with decisions made by more “qualified” groups, fare well. One of the most comprehensive studies of jury verdicts, for example, revealed that, in about 89% of all cases, judges agree with the jury’s verdict.[21] An even more interesting study compared jury verdicts in malpractice suits with the evaluations of a group of disinterested physicians and found a strong positive correlation between physician evaluation and the jury’s verdict.[22]