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January 21, 2005

Trials by Research and by Jury

By David Rottman

Dear Alex,

Thanks for the analysis of county-level average awards that you provided. As before, your findings are striking and thought-provoking. I had anticipated that awards might be lower in affluent areas—hence the “subscribers” hypothesis. I have two quick reactions. First, it remains uncertain that juries in white, high income counties are rendering what can be viewed as “correct” award levels. Second, “rural out of the way counties” I assume, were the venue for relatively few tort trials, and thus potentially even more heavily influenced by a few high dollar awards than would be the more urban areas. [More generally, looking at averages tends to give you a rather different picture of our tort system than the use of the median award (where half of all awards are higher and a half is lower). Using the data compiled by the National Center for State Courts on behalf of the U.S. Department of Justice’s Bureau of Justice Statistics from 45 of the 75 most populous counties, the median tort award in state courts during 2001 was $28,000,with 8 percent of awards over$1 million]*

Let me next say a few words about the American jury, which you malign as “the tyranny of the twelve”. First, if tyranny it is, the U.S. Constitution imposes it. The Seventh Amendment states:

“[I]n suit at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Similar provisions exist in the various state constitutions. Shifting cases to the federal courts offers no immunity from the judgment of the American jury. Federal and state courts draw their juries from the same pools of potential jurors.

Second, jury pools have expanded over recent decades as the discriminatory practices that limited the participation by women, minorities, and the poor were removed. Thirty-five years ago, about 6 percent of all adults had ever served on a jury; today, close to one adult in three has experienced jury service. As a result, the jury participation of many minority groups has risen from near zero to rates roughly comparable to those for Whites. (At the same time, however, other reforms have gone far to eliminate the occupation-based exemptions that kept many professionals and business people out of the jury room.) It seems a sound principle that all citizens have an equal probability of being called to jury service.

Third, there is ample research attesting to the quality of jury decision-making. Judges and juries tend to agree on verdicts and awards. As a deliberating body, the jury compares favorably with other mechanisms, such as the hiring recommendations of employment interview panels or the diagnoses of medical panels (for a quick summary of such comparisons, see the table on page 71 in Verdict: Assessing the Civil Jury System, a 1993 report by the Brookings Institution). In the criminal justice arena, juries with predominately minority jurors have been attacked as the source of jury nullification (failure to convict as a protest against perceived unfairness in the legal system). When tested by research, these attacks on the jury have been found wanting: Jury decisions are explicable based on the strength of the evidence.

Despite our differing perspectives on judges and juries, we share a notable point of agreement. You memorably write of how “Lawyers, judges, politicians, plaintiffs, and professors battle to steer the ship [of torts] but one way or another the ship is changing course no matter who is at the helm.” The best evidence for this tendency to drift is the phenomenon of “the vanishing trial.” State civil trials by 32 percent since their 1976 levels, with most of the drop concentrated in the last five or so years (a less precipitous decline also occurred in federal civil trials over that period). The rise of privatized adjudication is one factor cited as a possible explanation, but such a decline would seem to reflect a significant shift in the incentives facing lawyers and litigants in going to trial (The November 2004 Journal of Empirical Legal Studies is devoted to the vanishing trial phenomenon.)

Tort reform, on which so much of our exchange thus far has focused, is a consideration in the debate on judicial selection. To me, it can never be more than a minor consideration. And I remain unconvinced that the available research evidence about the distribution of tort awards offers a sound basis for preferring one judicial selection method to another.

We have, though, found some common ground--the corrosive influence that campaign fundraising by judicial candidates can have on the perception and the reality of equal justice in states that elect their judges. I can report that there have been some positive developments in this regard. North Carolina in 2004 became the second state (Wisconsin was the first) to publicly fund (appellate) judicial races. Twelve of the16 candidates relied on such funding, as did four of the five winning candidates (the other winner applied for but did not qualify for the funding). Also, a decade ago the Texas Supreme Court demonstrated that limits can be placed on lawyers’ contributions and specifically on the total amount any law firm can contribute.

But, alas, these positive steps are being dwarfed by the threat of a free-for-all in which judges and their opponents can personally solicit campaign funding from lawyers and litigants, current or potential, and behind closed doors. Such freewheeling fundraising by judicial candidates already is acceptable in the eyes of the 11th Circuit in its decision in the Weaver case. Although none of the parties had even raised the issue, the Court found a right by judicial candidates in Alabama, Florida, and Georgia to solicit contributions face-to-face from litigants, lawyers, and others. Prohibitions against such solicitations were one of the various measures placed by states in their Constitutions and statute law to keep judicial elections different from elections for political office. Like the Constitutionality of non-partisan judicial elections, prohibitions on face-to-face fundraising are now before the 8th Circuit, another issue raised in the original White case but remanded back to the U.S. Circuit Court of Appeals for adjudication. The floodgates of money could open in a way that will ultimately benefit no one, least of all the American legal system.

I value this exchange of viewpoints. We have touched on some fundamental points of disagreement, but also identified areas of agreement. Another point of agreement is that your work (and that by other economists) should promote research and debate on the possible link between judicial selection systems and patterns of case outcomes. At this stage, we seem to have more of a platform for redistributing wealth from one group of litigants to another than one offering a principle grounded in fairness that can promote positive change in our courts.

Best regards,


*This is not the proper forum to extend our discussion to the differences in research findings that may be attributable to whether jury verdict reporters or court records are the source on data on state court verdicts and awards. There are advantages and disadvantages in each source, and these should be openly debated. Data collection efforts by the National Center for State Courts employ both sources in describing patterns of outcomes in civil trials.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.