Thursday, October 15, 2009

Jury Prognostication

Experienced trial attorneys, in advancing their clients’ interests during mediation of tort cases, usually profess to having some ability to estimate what their cases are worth; i.e., figuring what a jury is likely to award and factoring in the cost of trying the case. Unfortunately, making such estimates usually involves trying to predict what twelve strangers — whose identities are not yet known, and whose innermost thoughts, attitudes and life experiences will never be fully known — will react as a group to the evidence that is likely to be presented at trial. In my state, all we know for sure at the time of mediation about the future members of the jury is that they will be at least 18 years old and will either have a driver’s license or be registered to vote.*

When I act as a mediator, I always remind the participants that there is no such thing as an "average jury." Even when a jury is made up of average citizens (whatever those might be), I maintain that it is impossible to accurately predict the group dynamics that will result from the mix of different personalities when they start their deliberations. Even on the eve of trial, when you know who is going to be on the jury, determining in advance who will be the leaders in the jury room, for example, is a pretty imprecise exercise.

The science of statistics, its practitioners will argue, does help to give some predictability to the art of jury divination. But statistics, as I have said before, favors litigants who have lots of cases — insurance companies, e.g. The science has little to offer someone who has only one bite at the apple — the plaintiff, i.e. Every poker player knows that someone who can go all night has the edge over the gambler who has only enough money to sit in for one hand!

The situation faced by litigants is complicated further by the advance of technology. I believe that in the Internet age — Google, Twitter, Facebook, etc. — the unpredictability of juries has increased significantly. Are jurors going to be persuaded by the evidence and arguments they hear in court, or by something one of them read on a blog that morning? Most jurors with whom I have had experience take their role seriously and try to do the right thing. Unfortunately, however, what a lay person may think is the right thing to do can differ significantly from what the judge and the lawyers think is the right thing to do.

The problem arises, in my view, not only from the vast increase in the availability and accessibility of information online, but from the empowering effect all of it has had on the general population. Take a recent example from a criminal trial in my state. One juror did an Internet search of the defendant’s name and learned of a past criminal record. He then shared the information with the rest of the jury "because he thought jurors deserved to know."† His foray into hyperspace was discovered, and he was found in contempt and punished. His attitude of "empowerment" is, I’m afraid, more prevalent than many might suppose, and his example, rather than discouraging such vigilante justice, may instead simply cause others to be more careful about discussing it afterward.

So, getting back to the original point, how are we to assess the probabilities of a favorable jury verdict? Maybe, when all is said and done, we can’t. But I think we can do pretty well in assessing how the other side is likely to approach the risks involved with such unpredictability. People settle cases, after all, to avoid risk. I suspect that, more often than not, a case’s "value" to either litigant depends less on what the parties guess a jury is likely to do, and more on how far each believes it can push the other because of what the jury might do.

* RSA 500-A:1, IV; RSA 500-A:7-a, I.

† Annmarie Timmons, "Juror Becomes a Defendant," Concord Monitor, March 26, 2009. For an analysis of the dangers we face from a newly empowered citizenry, but one which is becoming more and more ignorant of the structure of our legal system, see Retired Justice Souter’s remarks to the ABA on August 1, 2009. The video is worth watching.


Joe Markowitz said...

I would be interested in knowing whether there is any research that supports the idea that the unpredictability of jury verdicts has actually increased. I agree with you that the chances that juries will consider information that they are not supposed to consider has increased substantially as a result of easy access to information on the internet, but maybe that just makes the modern jury more like the old-fashioned small town jury where everybody knew everyone and everything that was going on in town, and would take that knowledge into consideration in reaching a verdict. The internet, as others have said, does create more of a global village, and there is a lot more information readily available to the public. Going into a trial, you just have to be aware that jurors are very likely to be exposed to that kind of information. Does that make the result more unpredictable? I wonder.

John Lassey said...

I am not aware of any actual research on the effect the Internet has had on jury performance; however, I agree with you about the global village analogy. The problem, as I see it, is that there are more and more people around who could care less what the village elder (a/k/a judge) tells them about the rules. In their search for the simple answer to a complex situation, they'll do what "in their hearts" they know is the right thing, not what the judge tells them is the right thing.

In one sense, it has always been the case that the side with the the simpler story has the advantage. The new dimension that I feel has been added by the Internet is that there is more opportunity to go out and find an even simpler story! The irony, to my mind, is that with so much more information available, there seems to be so much less understanding of how the system is supposed to work. Justice Souter, in his remarks to the ABA last August, hit the nail aquarely on the head.

(I just tried leaving a link to these remarks, but Blogger won't accept it. Instead, I'll revise the original post to add a direct hyperlink.)