Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
Those of us who work at the task of conducting and preparing for trials likely have a different view of the American jury than those who don’t. Where critics might see jurors as emotionally-driven, capricious, and hopelessly out of their element, we, based on our experience, are more likely to see them as generally diligent: not always following what the law considers to be the correct process, but almost always following a process. They are systematic, conscientious, and ultimately trying quite hard to follow the facts and the law, and to not be led or manipulated by sympathy, bias, or persuasive tricks. That, at least, tends to be the experience among those who commonly work with jurors. But it has not silenced the chorus of people saying that there must be a better way. If we can just set aside the jury, the argument goes, we can have a system that is quicker, less onerous, and less prone to errors.
The recommendations to move away from juries are often based on flaws in the trial process that are real enough, but generally not unique to juries nor necessarily solved by judges or other expert decision-makers. The arguments are also often based on assumptions about juries that are questioned by the research. One example of this is found in a recent article (Chodos, 2018) that asks the question, “Should There Be Specialty Courts for Medical Malpractice Litigation?” The answer, from MD-JD Joel Chodos, is “Yes.” “The current tort system with jury trials,” he argues, “is cumbersome, slow, and yields often unpredictable results.” To replace them, he calls for specialty courts, like Delaware’s Court of Chancery or the Workman’s Compensation System. In this post, I’ll take a look at the problems with this argument.
The “Jury Problems” Are More Presumptive Than Real
Dr. Chodos relies on many of the common beliefs about jurors:
- Information may be too complex and, in response to conflicting experts, “jurors may be left confused.”
- Because they’re selected in a way that discourages specialized knowledge, they are unable to follow scientific and technical evidence and to “separate ‘real’ science from ‘junk science.’”
- When they’re confused about conflicting evidence, “a jury of laypersons may fall back on judgments fashioned on personality and emotion rather than facts.”
- Specifically, “jurors may rely on sympathy for the plaintiff, especially in cases of serious injury or death,” or they may act more out of a desire to help the plaintiff than to assess the defendant’s actual responsibility.
For the most part, Chodos couches these critiques in references to the ways juries “may be seen” or “have been criticized.” When it comes to research backing it up, however, he refers to studies by Mark Taragin looking at 8,231 New Jersey cases and comparing the juries’ results with the physicians’ and insurers’ own (non-discoverable) evaluations. That study found a “substantial correlation” in the verdicts, a result that has been replicated in other studies. So Dr. Chodos concedes that “jurors get it right most of the time compared to expert reviewers.”
That, however, does not stop the article from relying on anti-jury perceptions, with the author noting that juries are, “typically seen as friendly to the “little guy” and as more sympathetic to the injured plaintiff than an administrative panel or judge” (emphasis added).
The Other Problems Are Not Unique to Juries
Dr. Chodos also covers a number of other problems with the medical malpractice tort system, including the personal toll on American doctors who face a relatively high-risk of suits during their career, as well as the economic costs due to insurance and defensive medicine. He also takes note of the fact that many medical injuries don’t translate into lawsuits, either due to a lack of knowledge of a medical error, or because the case is otherwise missing the qualities that would entice a plaintiff’s attorney.
While these are clear reasons to look into a number of reforms — steps that would increase access, ensure merit, and reduce or cap outlier verdicts — they aren’t necessarily factors that are unique to the jury. A number of studies have found, for example, that legal professionals are not immune to biases, and may even magnify the problem of higher damage awards. For example, one study (Vidmar & Rice, 1992) found that in evaluating the same cases, jurors were less variable and less generous in awarding damages than were legal professionals, in this case arbitrators.
And the Alternatives Have Their Own Problems
In proposing a solution, Dr. Chodos draws from a 1988 AMA proposal to replace jury decision-making with expert decision-making, relying on “specialized courts with narrowly- focused jurisdictions offer judges with special knowledge and experience in certain areas of law.” The assumption is that decision-making by specialists will reduce bias and limit excessive awards. However, as noted above, bias can influence judges too, and there is no empirical reason to believe that judges will be more predictable or conservative in deciding cases and awarding damages.
Indeed, there is some reason to believe the problem could even be more acute, perhaps explaining the results of the Vidmar and Rice study mentioned above: When there is only one decision-maker, then whatever bias that person has is likely to go unchecked. With single judges, we lack the natural “compromise effect” of a larger group decision-making in limiting extreme perceptions and preferences.
In addition, the very specialization that Dr. Chodos sees as an assent can end up working against the specialized court model. As a judge builds experience on similar cases, that judge is constantly gaining knowledge on the parties, the venue, and the types of cases. That experience builds up over time, creating very durable attitudes and worldview, and it can get to the point where parties are not so much contesting against the other side as they’re contesting against the judge.
Dr. Chodos partially acknowledges this problem in noting that the solution, “leaves the potential opportunity for courtroom bias by judges who become very familiar with the attorneys practicing before them” — not just the attorneys, but the parties, and the medical issues as well. His only response, however, is “this is possible in other existing specialized courts as well.”
Ultimately, because of the risks of acting based on the perceptions and not the realities of American juries, and the risks of creating additional problems without solving the problems of bias or excessive damages, eliminating the jury is not the fix.
Other Posts on Protecting the Civil Jury:
- Worry About Biased Judges Too (Another Argument for a Restored Civil Jury)
- Fight for the Civil Jury
- No, Don’t Repeal the Civil Jury: A Response to Professor Renee Lettow Lerner
Chodos, J. E. (2018). Should there be specialty courts for medical malpractice litigation?. Columbia Medical Review, 1(1).
(Note, this article is cited online as being either 2015 or 2018).
Image credit 123rf.com, used under license, edited