Tuesday, October 13, 2009

Advisory Jury Trials in FEMA Litigation

Plaintiffs' lawyers in the FEMA litigation arising out of the exposure of hurricane Katrina victims to fumes while they were living in government issued trailers have asked the court to conduct two "mock" non-binding summary jury trials.  The first plaintiff's case to be tried ended in a defense verdict. 

The idea is that these non binding trials would be summary proceedings - taking less than a day and costing a lot less than formal trials.  The rules for the trials would be more relaxed as well.  Juries would be told that their verdicts are advisory. 

The AP article -- found here -- quotes plaintiffs' lawyer Gerald Meunier: "It’s a perfect fit,” said Meunier. “The cost of conducting bellwether trials is substantial for both sides.”  The defendants are against the idea.  

(Hat tip: Richard Arsenault)

As many of our readers know, I've written on bellwether trials (see my piece on SSRN).  In that piece, I argued in favor of binding bellwether trials.  I am currently working on an article about the uses of non-binding bellwether trials.  In particular, is there a justification for conducting bellwether trials other than efficiency?  As the quote from Meunier makes clear, if you think you are going to be settling cases on an aggregate basis then it makes sense from an efficiency perspective to conduct some kind of bellwether trial - either a full blown affaire or the more limited type of advisory trial that the plaintiffs are are proposing.  But what about all the plaintiffs whose cases are not getting tried?  How can we be certain that we are measuring the value of suits accurately?  What about fidelity to the substantive law requiring individualized causation? 

The truth is that there is no such thing as an "accurate" measure of a good for which there is no market such as the kinds of damages usually awarded in tort suits.  We rely either on jury verdicts, which studies show have substantial variance, or on comparisons with other cases conducted by lawyers using essentially qualitiative analysis.  But these are often based on a conveneince sample, that is, the sample of cases that is being analysed is not random and has a potential to be biased.  Bellwether trials offer a way to value cases -- assuming the sample is chosen using social science methods -- and limit the biases inherent in the more anecdotal method of comparison.  Then we can determine whether the variances in the distribution of the outcomes is such that we can draw conclusions from the bellwether trials or not.

More on this in a bit.  ADL


Aggregate Litigation Procedures, Environmental Torts, Informal Aggregation, Procedure | Permalink

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