I recently attended a Continuing Legal Education seminar in which a speaker presented a very insightful and interesting perspective on juries and what motivates them. The speaker’s essential point was that fairness and empathy are the overriding emotions guiding a given juror in a civil case, as opposed to fear, as some have theorized. Research on the subject has shown that a “sense of justice” separates humans and apes from the rest of the animal kingdom, and it also shows that this “sense of fairness” or the “justice principle” is innate. Even babies and very young children show preferences for the “good” guy or the moral actor. http://www.nytimes.com/2015/06/23/science/toddlers-have-sense-of-justice-puppet-study-shows.html?_r=0 In listening to this speaker, I began to reflect on our jury system, my respect for jurors and my core belief in the goodness of human nature in general.
The 7th Amendment to the U.S. Constitution preserves the right to jury trial. The framers recognized the fundamental importance of the civil jury trial to our justice system; But, why? If you ask any number of seasoned trial lawyers, they will likely tell you, that the vast majority of juries in cases they have tried get it right. More importantly, though, I believe that the jury civil trial is the one remaining institution in which there is no bureaucracy, no red tape, and where an individual can compete on a level playing field with the most powerful corporation. In this way, juries are the great equalizers in our society. They are feared by the rich and powerful alike. Having represented insurance companies for many years, I know first-hand how this fear motivates insurance companies to do right by their insureds in cases of liability. It’s amazing, magical even, how quickly an insurance company will work to analyze their exposure when a trial date has been set. Jurors may not be motivated by fear, but insurance companies and corporate defendants absolutely are!
Although the right to a jury trial is guaranteed by our constitution, it is under threat. Jury verdicts can be overturned and indeed the Alabama Supreme Court has in recent years usurped the decisions of “a jury of our peers” to our detriment, and to the detriment of our communities. One study found that in the last 10 years, the Supreme Court of Alabama, when writing an opinion in civil cases where the verdict involved money for the plaintiffs, overturned Alabama juries 72 percent of the time. Some examples of jury verdicts overturned by the Alabama Supreme Court in recent years include the following:
– In 2009, the Court reversed over $275 million in jury verdicts against pharmaceutical companies accused of fraudulently manipulating the prices paid by the state for certain drugs under Medicaid.
– In 2012, the Court overturned a $78.4 million jury verdict against a generic drug maker for charging the state’s Medicaid program artificially inflated drug prices.
– In 2007, the Court reversed a $3.5 billion punitive damage award against ExxonMobil.
– In 2003, the Court overturned an $82 million award against GM.
You may think these reversals do not affect you, but they affect us all, both directly and indirectly. The willingness of our State’s Highest Court to discount the findings of our peers undermines the entire litigation process and can significantly affect your ability to receive just compensation in the event you are ever in the unfortunate position of being a party to litigation. This type of judicial over-reach undermines the leverage of the average citizen even before the trial stage of litigation. The mediation process is often compromised because the insurance companies have reason to believe that they can have any award that may be rendered against them overturned. Without a healthy respect for justice and a jury’s willingness to impose it, insurance companies have less motivation to pay the full amount of legitimate claims.