So What Should the Law Do About Jury Variability?

In my previous post pointing readers to Tim Lytton’s thought provoking post on TortsProfBlog, I neglected to mention our own Byron Stier’s work on the same issue.  Interested readers might look to his piece, Jackpot Justice available on SSRN.  Here is the abstract:

Masstort scholars, practitioners, and judges struggle with determining themost efficient approach to adjudicate sometimes tens of thousands ofcases. Favoring class actions, mass tort scholars and judges haveassumed that litigating any issue once is best. But while litigatingany one issue could conceivably save attorneys’ fees and courtresources, a single adjudication of thousands of mass tort claims isunlikely to further tort goals of corrective justice, efficiency, orcompensation in a reliable way. That is because, as recent empiricalresearch on jury behavior shows, any one jury’s verdict may be anoutlier on a potential bell curve of responses applying the law to thefacts before it. Indeed, one aberrational, high jury claim valuation,if extrapolated to thousands of claims through a class action, mayinappropriately bankrupt an entire industry. Similarly, one unusuallylow jury verdict might deny legions of plaintiffs the compensation thatthey deserve. To illustrate the problems of attempting to resolve amass tort with a single jury, this Article discusses the Engle tobaccoclass action of Florida smokers, where the application of a single juryverdict to approximately 700,000 smokers appears to be an outlierverdict in light of prior juries’ verdicts in Florida tobacco cases. Incontrast, this Article argues that the use of multiple juries inindividual cases is a superior method of resolving a mass tort. Whilethe use of multiple juries in class actions to create statisticallycobbled claim values has been rejected as violating due process andstate tort law, no such problems accompany the approach espoused here:that individual-plaintiff lawsuits, each with its own jury, be triedand that the jury verdicts be used by mass tort litigants to developclaim values for broad mass tort settlement. In addition to remainingwithin the strictures of constitutional and tort law, this clusteringof multiple juries around an accurate valuation of mass tort claims andthe resulting likely settlement furthers both the procedural goal oflitigant autonomy and the tort aims of efficiency, corrective justice,and compensation.

One question I ask in my work in progress is what makes a process that uses other people’s jury verdicts as a predictor of your own award fair?  Is this an evolving view of what fairness is in litigation? 

ADL