Empirical analysis of juries in tort cases

Throughout its history, the jury has attracted both stiff criticism and unqualified praise, viewed by turns as an incompetent, naïve, and biased decision maker and as an astute repository of folk wisdom and common sense. Here, we examine how the American jury actually behaves in the tort cases that produce the majority of civil jury trials. The evidence shows that juries usually use reasonable strategies to evaluate the conflicting evidence they are given. They are active problem-solvers who typically work to produce defensible verdicts. Nonetheless, juries are occasionally misled by the strategies they rely on to reach decisions. Their decision making processes are also at times undermined by limitations, many of them unnecessary, imposed by the legal system. In this chapter, we discuss the empirical literature relating to jury decisions in tort cases. For additional discussion on related topics in this volume, see the chapters on the empirical analysis of tort reform (Eisenberg, Chapter 20), tort damages (Viscusi, Chapter 18), and state court tort decisions (Heise, Chapter 2). Our empirical analysis of juries proceeds as follows. Empirical analysis involves a choice of both an empirical method and a theoretical framework for developing hypotheses. In Part 2 we (a) describe the various methods that are used to study jury behavior, and (b) outline the difference between the external perspective of economic theory and the internal perspective of jurors. In Part 3 we examine the behavior of the jury in tort cases, beginning with an overall view of the approaches jurors generally take in reaching decisions. We then assess how jurors deal with the key topics associated with charges of jury incompetence and bias: decisions on liability; expert testimony; corporate defendants; separating decisions on liability and damages; assessment of compensatory damages; decisions on punitive damages; and comprehension and application of the law. Finally in Part 4 we consider which aspects of less than optimal jury performance constitute insurmountable obstacles and which limitations can be overcome.