Wednesday, October 28, 2009
I was thinking about Erichson's post on the Prempro punitive damages verdict that has been temporarily sealedl so as not to bias the jury in subsequent trials. This is a very curious aspect of the law to me - why shouldn't juries know how other juries have decided cases? I am not sure where I come out on the question, but consider the following.
There are a lot of complaints that jury verdicts are inconsistent, even random, too high, too low, in any event different from what judges and lawyers think is the appropriate award for a given case. Studies of historical jury verdicts, like those conducted by Neil Vidmar, show that there is some variability in jury verdicts that is not accounted for by the legally relevant facts of the case. Surveys like those conducted by Michael Saks et al. demonstrate by and large agreement between judges and lawyers about case valuation, but more variability among lay persons (potential jurors). Saks attributes this to the fact that jurors don't have a point of comparison, and the way judges and lawyers value cases is comparatively.
So why not give jurors a sense of what other juries have done, and let them decide what they think the appropriate amount of damages is in a given case. Do we think juries will be too influenced by the number, that it will set a floor or a ceiling on their findings? If we think variability of jury verdicts is a bad thing then wouldn't giving jurors a sense of other cases help limit that variability except where cases are legitimately different and deserving of different awards? The doctrine of remittitur permits judges to compare jury verdicts and lower outlier verdicts, so the concept of comparative valuation isn't foreign to our procedural regime.