Decisionmaking About General Damages: A Comparison of Jurors, Judges, and Lawyers
Placing important decisions in the hands of the civil jury – made up of ordinary citizens untrained in the law – has long been criticized. For example, Erwin Griswold, law school dean and Solicitor General of the United States, asked, “Why should anyone think that 12 persons brought in from the street, selected in various ways, for their lack of general ability, should have any special capacity for deciding controversies between persons?” And Jerome Frank, law professor, aggressive legal realist, and judge, argued that juries are uncertain, capricious, and unpredictable, ignorant and prejudiced, poor factfinders, gullible, and incapable of following complex legal rules, thus making “the orderly administration of justice virtually impossible.” The great weakness of even the most thoughtful of these criticisms is that they are based on little more than anecdote and assertion, rather than anything resembling systematic empirical evidence. The first major study of jury decisionmaking was designed with the awareness that any assessment of the jury ultimately had to be made in comparison with judges, the decisionmakers who would replace the jury in any cases juries would not be permitted to decide. Accordingly, Harry Kalven and Hans Zeisel asked judges in 8,000 civil and criminal cases sampled from around the United States how they would have decided each case if it were a bench trial instead of a jury trial. By comparing these responses to the actual jury verdicts, Kalven and Zeise! found that judges and juries agreed on the verdict in personal injury cases 79% of the time. They also found that when jurors and judges disagreed, the jury was no more inclined than the judge to favor plaintiffs over defendants, that the agreement-disagreement ratios remained the same for both easy and difficult cases (suggesting no lack of comprehension by the juries), and that the judges rarely thought the juries’ verdicts were unreasonable in light of the available evidence and applicable law. In fact, the only noteworthy difference was that when juries did find liability, they awarded on average 20% more than judges said they would have awarded. Even that, however, was a more modest difference than critics of the jury would have had us believe. Perhaps because Kalven and Zeisel’s research findings provided so little support to the usual criticisms, the critics fell silent for a generation.