The Magazine

A Big Fat Jury Verdict

Trial lawyers aren't the only problem with the tort system.

Jun 14, 2004, Vol. 9, No. 38 • By WILLIAM TUCKER
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Sunstein and his coauthors assumed that juries would settle on an award amount in the manner of Olympic gymnastics judges--with the highs and lows thrown out and the group deciding on something in the middle. "In each case, we presumed that the median juror would represent the entire group's decision," says Sunstein. But the results were otherwise. In 500 deliberations, conducted with 3,000 jurors, "We found that, on average, where jurors found a high degree of reprehensibility, the jury was more punitive than its median member. Where perceived guilt was low, on the other hand, the jury was less punitive than its median member."

Most stunning was this: In 17 percent of the cases where punitive damages were awarded, the group settled for the highest dollar award chosen by any juror; in 10 percent they reached a number higher than any individual juror had originally chosen. "The essential problems are compounded rather than alleviated by jury deliberations," says Sunstein.

The researchers found three other factors that help explain the jury's decision: (1) juries will give larger awards to plaintiffs who are viewed as "local"; (2) juries will give higher awards when the defendants are viewed as having a lot of money; and (3) juries will give higher awards when the plaintiff attorney asks for higher amounts. The last is particularly significant. It suggests that, in the no man's land of punitive damages, plaintiff attorneys can "anchor" the jury's thinking simply by asking for outlandish amounts. In one trial, simply tripling the plaintiff's request from $50 million to $150 million raised the award by $35 million.

All this goes a long way toward explaining what is going on in American courtrooms. Tort reformers now generally agree that rationalizing punitive damages would help curb the Wild West anarchy of jury verdicts. "What's happened is the civil courts have essentially taken over what is supposed to be a punitive function," says Walter E. Dellinger III, professor at Duke University Law School. "Yet at the same time, most of the protections afforded to criminal defendants by the Constitution have not been carried over for civil defendants."

One of the most obvious is the Eighth Amendment's prohibition of "excessive fines." In a highly controversial decision, the Supreme Court decided in 1989 that the Eighth Amendment does not protect civil defendants because punitive damages--even though they might stretch into the billions--do not constitute "fines." In State Farm v. Campbell, the Court did decide, however, that punitive damages could be regulated under the more ambiguous Fourteenth Amendment. The justices further suggested that punitive damages should not exceed compensatory damages by a factor of 9 to 1--which would still make the fen-phen verdict permissible.

The real question is whether juries should be picking these numbers at all--at least without some kind of statutory guideline. "When someone is convicted of armed robbery, we don't say to the jury, 'All right, how many years do you think they should serve? Pick a number between 1 and 80,'" says Dellinger. "We have statutory sentencing and then the judge decides."

Trial lawyers, of course, will go to the mat to protect their right to charm a jury. "Punitive damages are delivered in only 5 percent of all cases," says Thomas Goldstein, a Washington attorney who argued State Farm before the Supreme Court. "Frankly I can't see where there's any crisis at all."

But with jury verdicts becoming a billion-dollar lottery, others are likely to feel that the time has come to act.

William Tucker is a fellow at the Discovery Institute. His book on trial lawyers, Civil Lynchings, will be published next year.