Courting stupidity: why smart lawyers pick dumb jurors.
Although the National Highway Traffic Safety Administration did not (and does not) deem the Malibu's gas tank to be defective in placement, design, construction, or any other way, lawyers for Anderson disagreed and proceeded to sue General Motors, saying the fire might have been averted had the company located the tank somewhere other than toward the rear of the Malibu. (They also disagreed on the crash speed, estimating it at 50 mph.) A Los Angeles jury agreed and m 1999 awarded the plaintiffs $4.9 billion--a figure that exceeded the combined gross domestic product of II U.N. member states.
The award in Anderson v. G.M., later reduced to $1.2 billion, caused something of an outcry. The Washington Post said in an editorial that it "makes the tort system into a kind of lottery in which clever trial lawyers and a few victims get very rich at the cost of society's confidence in the justice system." The conduct of the trial had been open to question as well. It turned out that, at the plaintiffs' request, L.A. County Superior Judge Ernest Williams had agreed to exclude from evidence various matters that G.M. wanted to introduce.
Among them were federal government statistics from 20 years of real-world highway experience showing the Malibu to be among the safest cars of its time, with an unusually low crash fatality rate. Nor was the company permitted to introduce crash test data raising safety concerns about the alternative placement of the gas tank that the plaintiffs maintained would be better. Most remarkable of all, Williams had excluded from evidence the fact that the driver of the other car had been drunk (having a blood alcohol concentration of 0.20 percent "several hours later") and had been sent to prison.
As late as the 1980s, jury verdicts higher than, say, $50 million still counted as sensational, but by the end of the century only a billion-dollar verdict could be counted on to merit front-page treatment. Within days of the Los Angeles jury's decision in Anderson v. G.M., a rural California jury voted $290 million over a Ford Bronco rollover accident; like the Chevy Malibu, the Bronco exceeded the federal safety standards of its day. Later, another L.A. jury voted $3 billion in punitive damages in a tobacco case filed by an individual smoker who testified that he'd had no idea the habit was dangerous until congressional hearings in 1994.
Even that paled alongside what happened in a Miami courtroom in July 1999. Following a trial that took two years, a jury deliberated for a mere five hours before deciding that the tobacco industry should pay $145 billion in punitive damages--a sum more than twice the gross domestic product of New Zealand--for having behaved badly toward Florida smokers.
One of the plaintiffs, a 44-year-old nurse, said she "had no idea there was anything wrong with cigarettes at all." The verdict, in a class action styled Engle v. R.J. Reynolds Tobacco Company, followed a series of rulings by Miami-Dade Circuit Judge Robert Kaye that were highly favorable to the plaintiffs. The Engle verdict was greeted with a less than respectful reception in much of the press. The Cincinnati Enquirer called it "ridiculous" and "outrageous," adding, "A ruling that completely ignores personal responsibility is a joke." The San Diego Union-Tribune deemed the jury's decision "monstrous" and "outlandish." The Washington Post declared, "The biggest damages here may be to the reputation of the legal system." The Indianapolis Star said the award "falls somewhere between confiscation and robbery." In November 2000, Judge Kaye upheld the verdict, and the tobacco companies announced their intent to appeal.
Defenders of the legal system typically dismiss cases like Anderson and Engle as atypical. And it is true that only a tiny number of juries return from deliberations having approved the kind of numbers too large to fit on a calculator display. Moreover, in many of these cases judges subsequently cut the size of the damage award, though usually to a level that is still stratospheric.
But the mere possibility that an extreme outcome will emerge from the process, and perhaps survive review and appeal, gets factored into negotiations in the majority of cases that are settled before a final verdict. With breast implants, asbestos, and many other mass tort episodes, a rash of arrestingly high verdicts helped educate recalcitrant defendants about the need to pony up substantial settlements.
While the press sometimes refers to these eye-popping awards as "runaway" verdicts, the term is more often than not misleading, since it suggests that juries are racing off madly on a tear of their own. Quite the contrary is usually true: Most "runaway" juries are behaving precisely as one set of lawyers has been carefully coaching and skillfully inciting them to do. They are, for the most part, not running away from anything but running toward a resolution of the case that trial advocates have portrayed to them as reasonable. In seeking to account for exorbitant or unjust verdicts, the most relevant question to ask is usually not, "Why did these jurors behave so irrationally?" but rather, "How did the lawyers manage to portray this outcome as rational?"
Among the most powerful ways in which American lawyers can shape the outcome of trials is by exercising their rights of juror selection. Typically, they can launch an unlimited number of "for cause" challenges to oust prospective jurors who supposedly cannot approach the case objectively, to which they can add an often substantial number of "peremptory" challenges, which let them dismiss prospective jurors without offering any reasons at all.
The upshot is that jury selection in high-stakes cases has emerged as a protracted and expensive stage of trial in itself, its results often seen by both sides as vital to the outcome. In the O.J. Simpson case, selection alone lasted 10 weeks, which in most countries would be a remarkably long time for an entire murder trial. The Engle tobacco class action in Florida went it one better, with the tweezing and fluffing of the jury pool going on for three months; in the end 800 prospects were sent home in the search for the perfect 18, after having been quizzed on such matters as their reading habits and their views on seemingly unrelated issues such as gun control.
A busy industry of consultants, how-to seminars, and jury selection handbooks offers advice to lawyers on whether or not to boot jurors based on such characteristics as hair style, hobbies, brand of car, and favored kind of reading. The impartial juror" is just a fiction, declares an ad for a primer that promises to show "how to assemble your winning jury, step-by-step." By the mid-1990s, the jury consulting business was estimated to have passed $200 million in annual revenues, mostly catering to lawyers handling civil cases (that being where the money is).
The whole point of the process, of course, is to engage in discrimination. What makes the hypocrisy complete is that trial lawyers themselves make a very handy living suing when unwary people in other walks of life--employers, landlords, private clubs--engage in the same kinds of discrimination. For most of us, explicitly considering the religion, age, or disability status of a job applicant or prospective tenant is strictly against the law, and even inadvertent acts of bias--resulting from unconscious stereotyping, for instance--can cost us everything we own in a private lawsuit. But if we ever have to face such a discrimination suit, it will practically count as malpractice when it reaches trial for both sides' lawyers not to engage in age, religion, or disability discrimination during the jury selection phase.
The group stereotyping in the literature advising lawyers on jury selection is anything but unconscious or inadvertent. Women "are often prejudiced against other women they envy, for example, those who are more attractive," is one groaner from The Art of Selecting a Jury, published as recently as 1988. Mexican-American jurors are "passive," and "Orientals...tend to go along with the majority," we learn from a manual in recent use by Texas prosecutors.
Although the U.S. Supreme Court lately has instructed lawyers not to employ race (and even more recently sex) as a factor in jury picking, lawyers continue more or less blatantly to engage in "jurymandering" of both sorts. The edicts are difficult to enforce given that lawyers need offer, in the words of Brandeis University politics professor Jeffrey Abramson, "no justification, no spoken word of explanation, no reason at all beyond a hunch, an intuition" for their peremptory challenges. One can imagine what would happen to the employers or landlords who claimed such a right to base their selection decisions on subjective hunches.
Demographyaside, a major goal of the selection process is the removal of any jurors with too strong a base of experience, knowledge, or opinion about the case's subject matter. If a case presents important medical or accounting issues, for example, lawyers on one or both sides probably will want to get rid of jurors with expertise in those areas. Manuals emphasize the importance of excluding potential "opinion leaders" for the other side. "You don't want smart people," says a Philadelphia prosecutor in an old training tape." [They'll] analyze the hell out of your case." Even before selection begins, busy people often have dodged service, leaving a pool comprised disproportionately of retirees, the unemployed, and workers who can be spared from their jobs.
To make matters worse, a judge in a high-profile case may bounce juror prospects for cause simply because they have followed press reports about the events at issue. In the 1989 trial of Oliver North, for example, the judge flushed out more than 200 potential jurors for knowing too much about the case, which had been on the front pages for months. ("I don't like the news," said the eventual fore-woman. "I don't like to watch it. It's depressing.") One panelist, according to The New York Times, said of North that "she had seen him on television," but added, "It was just like I was focusing on the Three Stooges or something." Another woman, asked what she knew about the Iran-Contra scandal figure, replied, "I don't know, something about overseas." In the 1990 obscenity trial over a Cincinnati museum's exhibition of Robert Mapplethorpe's work, the only prospective juror who regularly visited museums was dismissed for cause, it being felt that actual familiarity with those institutions put an "unnecessary burden" on her objectivity.
Citizens with the "wrong" views can simply be prevented from serving on juries. According to coverage of the Engle trial in the local press, the most frequent reason for dismissing jurors was that they were considered to harbor unacceptable prejudices on the subject of tobacco company liability--apparently typified by a former smoker of three decades who said, "I just think people are and have been well aware of the detriments of smoking....To come back after the fact, I find that somewhat ridiculous."
Lawyers' Full-Court Press
It is all a strange inversion of the once widely held premise that the courts should draw on jurors who are civically engaged and aware of the events of the day. Juror prospects have historically been drawn from rolls of such groups as registered voters, owners of real property, and literate persons--all likely, on average, to display a degree of civic awareness exceeding room temperature. (In the really old days, it was considered an advantage in local jurors that they were personally acquainted with the parties or witnesses in the dispute; that way they could take their reputations into account in assigning proper weight to their stories.)
In much-publicized cases a vast army of recruit material--1,017 prospects in the LosAngeles murder trial of the Menendez brothers--must now be screened in search of the few, the proud, the ill-informed. With hundreds of persons sitting for hours filling out lengthy questionnaire-s-79 pages in the Simpson case, 45 pages for the trial of Reginald Denny's attackers--the process can take on the air of a giant college entrance exam on awareness of current events, albeit with reverse scoring.
The more exhaustive the questionnaires, the more power the lawyers will have to shape the jury. If enough questions are put to a panel of prospects, most will give at least one answer that can be seized on as evidence of their bias--despite the uncomfortable implication this might leave that most members of the public are not objective enough to serve on juries. Trial lawyers accuse their critics of not trusting juries, but their own practices could scarcely convey greater distrust of jurors as individuals.
The Simpson trial's questionnaire contained 294 queries, including "What was your least favorite subject in school?"; "How important would you say religion is in your life?"; and "Have you ever belonged to Alcoholics Anonymous, the Sierra Club, or the National Rifle Association?" In some cases, lawyers have even been known to hire gumshoes to drive around prospective jurors' homes interviewing neighbors about their private lives--this from the same profession whose avidity in filing invasion-of-privacy suits is almost as great as its avidity in filing discrimination suits.
One reason pretrial questioning takes so long is that lawyers routinely use it as a way to begin arguing their cases, planting assumptions and factoids that might or might not be admissible at trial. One injury lawyer, quoted in Stephen Adler's 1994 book The jury, said he planned to linger over the otherwise standard questions about whether prospects had ever been an employee of the defendant company by reciting its subsidiaries one after another: Had they ever worked for this one? That one? "That will make it clear that it's a big corporation," he said. Jurors "must not be aware that an attempt is being made to persuade them" during selection, suggests another how-to book for lawyers. "They are convinced that they have changed their minds by themselves."
Worse, some courts permit lawyers to "get a promise" from jurors: If I show A, will you agree to conclude B? Adler quotes one trial lawyer who got jurors to assure him that they could return a "substantial verdict" if he showed thus-and-such; after getting general assent from the panel, he proceeded to call out individual jurors' names: Were you on board? And you? Each, in turn, meekly assented. "The psychological research is very convincing that getting a promise does, in fact, work," an enthusiastic jury consultant told Adler. "If you give them positions, they adopt them."
Jury selection typically becomes a more unpleasant and intrusive process when lawyers succeed in wresting control of it from the judge. Many state courts allow lawyers to grill juror prospects directly, with judges assuming, at most, a referee role.
Jury selection in state courts symbolizes one of the things foreign visitors tend to find so baffling about American trials, namely the extent to which we permit lawyers, rather than judges, to run them. Elsewhere, judges direct the inquiry, framing issues and ordering the assembling of witnesses and evidence; by contrast, the American judge Marvin Frankel notes that in the U.S., "judges generally act as passive umpires....Lawyers produce, direct, and dominate the trial process." Counsel for each side determines what evidence will be brought forward, by which witnesses, in what order, and which issues will emerge and with what kind of emphasis. If neither side's lawyers see fit to introduce a certain significant piece of evidence, then it stays out of consideration, no matter how much light the judge or jurors think it might shed on the case.
A parade of evils that judges in other countries take pains to exclude can be seen almost routinely in many American courtrooms: inflammatory language and interruptions; "endorsement" by lawyers of their clients' cases; stagey eye rolling when their opponents make points; badgering of witnesses; appeals to sympathy or anger; blatantly rehearsed or coached testimony; comments that mislead, distract, or confuse; opening arguments asserting propositions there is no reasonable expectation of proving; closing arguments that endeavor to slip across propositions unsupported by what has come before--all are tolerated in some, though far from all, American courtrooms. (Practices differ enormously from one locality to the next and even between different judges in the same locality.)
The opening and closing arguments of a trial, in which lawyers speak directly to jurors, are particularly susceptible to demagoguery. One attorney laments that the final argument stage "has increasingly turned into a quagmire of personal character attacks, impermissible reference to non-record evidence, and blatant pleas to jurors' sympathies and prejudices." Judges sometimes sit by while attorneys mischaracterize what has been said before, compare opponents to murderers or Nazis, insist on logical inferences that are not, in fact, logically obligatory ("If the gloves don't fit, you must acquit"), address jurors by name, and so forth. If a private lawyer pulls out a Bible and starts quoting from it in open court to explain why his opponent should lose, no one from the American Civil Liberties Union will let out a peep.
Why do so many judges in America feel constrained not to take control of trials? One reason, notes George Mason University law professor David Bernstein, is that the remedies available to them may seem inadequate to the task. Declaring a mistrial will usually seem like too drastic a reaction when a lawyer steps over the rhetorical line, yet merely instructing jurors to disregard any inflammatory bits is notoriously feeble. And on many matters--granting demands for sidebar conferences or more time to question witnesses, for instance--judges may accurately calculate that they face possible scrutiny from appeals courts if they take a hard line, but relatively little chance of such trouble if they let the lawyer have his way.
Getting the other side's evidence excluded can be as effective a path to victory as introducing prejudicial material of one's own. Such a pattern has turned up in quite a few "big" jury verdicts, starting with Anderson v. G.M., where neither the drunk driver's role in causing the crash nor the car's overall safety record made it into testimony. After managing to get the guilt and imprisonment of the drunk driver excluded, plaintiffs informed the jury that his fault consisted of "five seconds of bad judgment," whereupon the jury allocated to him only percent of the responsibility for the injuries.
Chrysler lost a $262 million verdict, mostly overturned later, over a crash in which a little boy was thrown from a Dodge Caravan. The judge decided that jurors should not be told that the victim had not been wearing his seat belt or that his mother, driving the van, had run a red light. Suzuki lost a $90 million verdict after the trial judge barred evidence that the driver in the crash had attended a wine tasting just before the accident. (The suit was filed by a passenger in the driver's car.) The company got that verdict thrown out, but at the second trial the company was still barred from obtaining medical records on the driver's blood alcohol level.
From much of the advice on jury handling found in the literature, one might conclude that practicing lawyers have a low regard for jurors' acumen. Consultants advise that "logic plays a minimal role" in the courtroom and that the real trick is to identify the jurors' "psychological anchors." A brochure from the San Diego Trial Lawyers Association promotes a video entitled Trying a Case to the Two Minute Mind; aka Trial by Sound Bite. It promises to explain how "to streamline each element of a trial based on the fact that most jurors are used to getting a complete story within a two-minute maximum segment on the evening news. This video demonstrates the effectiveness of visual aids, impact words and even colors, to influence the juror's perception and thought process in the least amount of time." A trial lawyer must--as prosecutor-turned author Vincent Bugliosi has written--"put a bib on the jury and spoon-feed it."
Race in the Courts
No modern story has done more to shake public confidence in trial outcomes than the ultrapublicized 1995 O.J. Simpson trial, in which, after a 133-day, $15 million trial, a Los Angeles jury took just three hours to acquit the former football star. Even within the American legal profession, so given to closing ranks against criticism, few cared to defend the Simpson trial's conduct or outcome. Instead, it was said to have been the fluke result of a never-to-be-repeated confluence of money, celebrity, bungling by the judge and prosecutors, and sheer luck. It was "aberrant ," "one of a kind," "in no way typical," and so forth. "The Simpson case is [such] an anomaly that we cannot generalize from it," said a California jury consultant.
Actually, the Simpson acquittal stood in a long tradition: By the 19th century, prominent lawyers in the nation's turbulent cities were already malting a name for themselves by winning acquittals for obviously guilty malefactors to the cheers of the mob. Such cases helped put the jury system itself under a cloud, despite its venerable pedigree in Anglo-American law and as a bulwark of liberty in colonial times. "The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity, and perjury," Mark Twain famously complained. We "swear in juries composed of fools and rascals, because the system rigidly excludes honest men and men of brains."
By the turn of the 20th century, uneasiness over the competence and objectivity of juries was already something of a tradition in itself. Many reformers during the Progressive and New Deal eras distrusted juries for their lack of expertise, their unpredictability, their cumbersomeness (trials are significantly longer and more expensive when juries are part of them), the lack of a written record explaining their decisions, and, of course, their susceptibility to demagoguery and sectional feeling. What did the most to undermine support for the jury during the 20th century was the record of Southern all-white juries, notoriously lawless and hostile to blacks' interests. It took many years after the fall of Jim Crow for Southern juries to lose their reputation as instruments of white prejudice.
Eventually, the expectation that jury outcomes would be racially tinged would subside-- for awhile, at least. Yet neither race nor sectionalist sentiment ever actually went away as factors in lawyers' practical courtroom work. By the 1990s, concern about racially tinted verdicts was on the upswing again after a series of high-profile police brutality cases, where such factors had loomed large, as well as reports that prosecutors were finding it hard to obtain convictions on certain types of charges in heavily black cities such as Detroit. A law professor at George Washington University provoked an outcry when he suggested that it might be appropriate for black juries to decline to enforce the law in some prosecutions for nonviolent crimes.
With the Simpson case, the debate reached the front burner. Ironically, one of the most telling facts about the case was that neither the defendant nor anyone else had at first expected his race to play much of a role in what was to come. ("I don't see race," Simpson told a friend. "Race is not an issue.,, "To put it bluntly;' Cochran later explained, "nobody thought of him as black.") But shrewdly perceiving their big/chance for a diversionary issue, Simpson's lawyers eventually went to such unsubtle lengths as wearing garments of African kente cloth to court appearances.
When the jury was set to make an on-site visit to the football player's home, Simpson's defense team went so far as to spend a day stripping the walls of their many pictures of white girlfriends, celebrities, and corporate sponsors and replacing them with pictures of Simpson's black relatives, hastily done up as color photocopies at a local Kinko's and framed. In a crowning touch, Simpson's lawyers framed and hung up, in a conspicuous location, one of the most famous images to come out of the civil rights era, Norman Rockwell's 1963 painting of a young black girl being escorted to school by federal marshals.
Though it's a topic that defendants in lawsuits are extremely reluctant to discuss, racial sentiment is looming as a factor against them in more and more civil cases, with help from some in the plaintiffs' bar. Environmental lawsuits, such as those arising from low-exposure tanker spills or pollution in minority neighborhoods, have increasingly scored record-breaking verdicts as lawyers play the "environmental racism" card, arguing that the company would have taken better care of the neighborhood had it been white.
It would be difficult to imagine a mass tort that had less of a connection to race than the Engle case in Florida, since smokers are drawn from all ethnic groups. Yet having obtained a heavily minority jury, plaintiffs' attorney Stanley Rosenblatt proceeded to try the case for a racial payoff, putting experts on the stand who depicted smoking as particularly lethal to blacks and hammering away at the tobacco companies for advertising in black magazines and consciously pursuing black customers. (That black publishers, radio stations, and event promoters had avidly pursued such "targeted marketing," and even sometimes complained of racism when they weren't able to get enough of it, didn't enter the argument.)
Although the litigation lobby likes to carry on as if the jury is in imminent danger of abolition, there is virtually no organized or even disorganized sentiment in this country in favor of such a drastic step. The consensus that juries are here to stay, however, should not imply that it is impossible to hold a public debate about how best to structure their role.
A legal system needs multiple lines of defense against miscarriages of justice, and historically the jury has had few rivals as a way of protecting defendants from overweening official power. But like any other part of government, a jury can pose a danger to liberty when it begins wielding government power in an affirmative way, as when it extends legal liability into new areas or inflicts arbitrary damage awards. A mechanism that works extremely well as a brake may lead to disaster when pressed into service as an accelerator.
One of the areas where juries are widely seen as having the worst difficulties is in the credible and consistent computation of damages. Given that, one reform worth considering would be to keep with the jury the decision of whether defendants are to be held liable but reserve to the judge the calculation of remedies--just as in most criminal trials the jury resolves the defendant's guilt but the judge alone then decides on sentencing. Even better perhaps, would be a rule by which judge and jury would separately arrive at damage numbers, and then the verdict would issue at whichever of the two numbers was lower, following the idea that a two-signature check should issue only in the amount for which both parties are willing to feel responsible.
Another set of reforms worth careful consideration would endeavor to give juries more power, rather than less, by rousing them from their artificial passivity. At present juries are subject to numerous constraints that almost seem designed to leave them vulnerable to the forensic skills of those who practice before (and on) them. Usually, for example, they are forbidden to take notes, even while everyone else in the courtroom is scribbling away; nor are they usually supposed to ask or suggest questions, a method well calculated to stifle any intellectual initiative they might show.
The legal instructions on how jurors are to resolve the case are commonly withheld until the last moment, a mode of proceeding one judge has compared with asking jurors to watch a ball game and decide who won without letting them know the rules till play is over. When the guidelines finally do arrive, the judge or his clerk has frequently cast them in legal jargon aimed at withstanding appellate review, which to lay listeners might as well be Serbo-Croatian.
Courts in Arizona and elsewhere recently have experimented with relaxing some of these constraints by letting juries take notes and pose questions to the judge. Much of the legal establishment has greeted these experiments tepidly; many who style themselves as defenders of the jury system may in fact be most comfortable with the institution when it serves as a sort of queen bee, all-powerful in theory but immobilized and force-fed in practice.
The Simpson aftermath led to renewed public calls for judges to take a firmer hand in managing trials, keep questioning on track, curb bullying of witnesses by lawyers, and so forth, which would be all to the good if it happened. It also led to long-overdue calls for reforming the jury selection system, including the abolition or curtailment of peremptory challenges and narrowing of for-cause challenges.
Why does the litigation lobby fight such reforms? Why does it carry on at such length about the jury as a representative institution, then do its best during selection to make it as unrepresentative as it knows how? Why does it endlessly compare the jury box to the ballot box, then turn away from it people it suspects of planning to vote the "wrong" way? These varied positions are not united by the goal of maximizing the power juries get to exert. On closer inspection, they can be seen to share only one common theme: they all arrange matters so as to maximize the power trial lawyers themselves get to exert. Should we be surprised?
Contributing Editor Walter K. Olson is a senior fellow at the Manhattan Institute. This article is excerpted from The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law (St. Martin's Press, January 2003). Portions of this article were adapted from the author's earlier writing for this magazine. [C]2002 Walter K. Olson. Used by arrangement with St. Martin's Press. All rights reserved.
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|Author:||Olson, Walter K.|
|Article Type:||Cover Story|
|Date:||Jan 1, 2003|
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