Free Minds & Free Markets

Courting Stupidity

Why smart lawyers pick dumb jurors.

If a drunk driver plows into you from behind at 70 miles an hour while you are stopped at a red light, you are not likely to live long enough to talk to a lawyer about it. However, Patricia Anderson and her passengers were lucky enough to be riding in a 1979 Chevy Malibu, a car much more solidly built than most of its competition. Six victims survived but suffered severe burns because the immense force of the crash had burst the Malibu's gas tank and ignited a fire.

Although the National Highway Traffic Safety Administration did not (and does not) deem the Malibu's gas tank to be defective in placement, design, construction, or any other way, lawyers for Anderson disagreed and proceeded to sue General Motors, saying the fire might have been averted had the company located the tank somewhere other than toward the rear of the Malibu. (They also disagreed on the crash speed, estimating it at 50 mph.) A Los Angeles jury agreed and in 1999 awarded the plaintiffs $4.9 billion -- a figure that exceeded the combined gross domestic product of 11 U.N. member states.

The award in Anderson v. G.M., later reduced to $1.2 billion, caused something of an outcry. The Washington Post said in an editorial that it "makes the tort system into a kind of lottery in which clever trial lawyers and a few victims get very rich at the cost of society's confidence in the justice system." The conduct of the trial had been open to question as well. It turned out that, at the plaintiffs' request, L.A. County Superior Judge Ernest Williams had agreed to exclude from evidence various matters that G.M. wanted to introduce.

Among them were federal government statistics from 20 years of real-world highway experience showing the Malibu to be among the safest cars of its time, with an unusually low crash fatality rate. Nor was the company permitted to introduce crash test data raising safety concerns about the alternative placement of the gas tank that the plaintiffs maintained would be better. Most remarkable of all, Williams had excluded from evidence the fact that the driver of the other car had been drunk (having a blood alcohol concentration of 0.20 percent "several hours later") and had been sent to prison.

As late as the 1980s, jury verdicts higher than, say, $50 million still counted as sensational, but by the end of the century only a billion-dollar verdict could be counted on to merit front-page treatment. Within days of the Los Angeles jury's decision in Anderson v. G.M., a rural California jury voted $290 million over a Ford Bronco rollover accident; like the Chevy Malibu, the Bronco exceeded the federal safety standards of its day. Later, another L.A. jury voted $3 billion in punitive damages in a tobacco case filed by an individual smoker who testified that he'd had no idea the habit was dangerous until congressional hearings in 1994.

Even that paled alongside what happened in a Miami courtroom in July 1999. Following a trial that took two years, a jury deliberated for a mere five hours before deciding that the tobacco industry should pay $145 billion in punitive damages -- a sum more than twice the gross domestic product of New Zealand -- for having behaved badly toward Florida smokers.

One of the plaintiffs, a 44-year-old nurse, said she "had no idea there was anything wrong with cigarettes at all." The verdict, in a class action styled Engle v. R.J. Reynolds Tobacco Company, followed a series of rulings by Miami-Dade Circuit Judge Robert Kaye that were highly favorable to the plaintiffs. The Engle verdict was greeted with a less than respectful reception in much of the press. The Cincinnati Enquirer called it "ridiculous" and "outrageous," adding, "A ruling that completely ignores personal responsibility is a joke." The San Diego Union-Tribune deemed the jury's decision "monstrous" and "outlandish." The Washington Post declared, "The biggest damages here may be to the reputation of the legal system." The Indianapolis Star said the award "falls somewhere between confiscation and robbery." In November 2000, Judge Kaye upheld the verdict, and the tobacco companies announced their intent to appeal.

Defenders of the legal system typically dismiss cases like Anderson and Engle as atypical. And it is true that only a tiny number of juries return from deliberations having approved the kind of numbers too large to fit on a calculator display. Moreover, in many of these cases judges subsequently cut the size of the damage award, though usually to a level that is still stratospheric.

But the mere possibility that an extreme outcome will emerge from the process, and perhaps survive review and appeal, gets factored into negotiations in the majority of cases that are settled before a final verdict. With breast implants, asbestos, and many other mass tort episodes, a rash of arrestingly high verdicts helped educate recalcitrant defendants about the need to pony up substantial settlements.

While the press sometimes refers to these eye-popping awards as "runaway" verdicts, the term is more often than not misleading, since it suggests that juries are racing off madly on a tear of their own. Quite the contrary is usually true: Most "runaway" juries are behaving precisely as one set of lawyers has been carefully coaching and skillfully inciting them to do. They are, for the most part, not running away from anything but running toward a resolution of the case that trial advocates have portrayed to them as reasonable. In seeking to account for exorbitant or unjust verdicts, the most relevant question to ask is usually not, "Why did these jurors behave so irrationally?" but rather, "How did the lawyers manage to portray this outcome as rational?"


Among the most powerful ways in which American lawyers can shape the outcome of trials is by exercising their rights of juror selection. Typically, they can launch an unlimited number of "for cause" challenges to oust prospective jurors who supposedly cannot approach the case objectively, to which they can add an often substantial number of "peremptory" challenges, which let them dismiss prospective jurors without offering any reasons at all.

The upshot is that jury selection in high-stakes cases has emerged as a protracted and expensive stage of trial in itself, its results often seen by both sides as vital to the outcome. In the O.J. Simpson case, selection alone lasted 10 weeks, which in most countries would be a remarkably long time for an entire murder trial. The Engle tobacco class action in Florida went it one better, with the tweezing and fluffing of the jury pool going on for three months; in the end 800 prospects were sent home in the search for the perfect 18, after having been quizzed on such matters as their reading habits and their views on seemingly unrelated issues such as gun control.

A busy industry of consultants, how-to seminars, and jury selection handbooks offers advice to lawyers on whether or not to boot jurors based on such characteristics as hair style, hobbies, brand of car, and favored kind of reading. The "impartial juror" is just a fiction, declares an ad for a primer that promises to show "how to assemble your winning jury, step-by-step." By the mid-1990s, the jury consulting business was estimated to have passed $200 million in annual revenues, mostly catering to lawyers handling civil cases (that being where the money is).

The whole point of the process, of course, is to engage in discrimination. What makes the hypocrisy complete is that trial lawyers themselves make a very handy living suing when unwary people in other walks of life -- employers, landlords, private clubs -- engage in the same kinds of discrimination. For most of us, explicitly considering the religion, age, or disability status of a job applicant or prospective tenant is strictly against the law, and even inadvertent acts of bias -- resulting from unconscious stereotyping, for instance -- can cost us everything we own in a private lawsuit. But if we ever have to face such a discrimination suit, it will practically count as malpractice when it reaches trial for both sides' lawyers not to engage in age, religion, or disability discrimination during the jury selection phase.

The group stereotyping in the literature advising lawyers on jury selection is anything but unconscious or inadvertent. Women "are often prejudiced against other women they envy, for example, those who are more attractive," is one groaner from The Art of Selecting a Jury, published as recently as 1988. Mexican-American jurors are "passive," and "Orientals...tend to go along with the majority," we learn from a manual in recent use by Texas prosecutors.

Although the U.S. Supreme Court lately has instructed lawyers not to employ race (and even more recently sex) as a factor in jury picking, lawyers continue more or less blatantly to engage in "jurymandering" of both sorts. The edicts are difficult to enforce given that lawyers need offer, in the words of Brandeis University politics professor Jeffrey Abramson, "no justification, no spoken word of explanation, no reason at all beyond a hunch, an intuition" for their peremptory challenges. One can imagine what would happen to the employers or landlords who claimed such a right to base their selection decisions on subjective hunches.

Demography aside, a major goal of the selection process is the removal of any jurors with too strong a base of experience, knowledge, or opinion about the case's subject matter. If a case presents important medical or accounting issues, for example, lawyers on one or both sides probably will want to get rid of jurors with expertise in those areas. Manuals emphasize the importance of excluding potential "opinion leaders" for the other side. "You don't want smart people," says a Philadelphia prosecutor in an old training tape. "[They'll] analyze the hell out of your case." Even before selection begins, busy people often have dodged service, leaving a pool comprised disproportionately of retirees, the unemployed, and workers who can be spared from their jobs.

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