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Thursday, April 14, 2005

Note to self: Don't ignore what actually happens in courts

There is an old saying that the only people who serve on juries are those who are too dumb to get out of it.  That pretty much sums up scholarly wisdom as well: educated members of society are underrepresented on juries, resulting in juries that are too dumbed-down to adequately assess the complex evidence and testimony that are increasingly the focus of modern trials.  Scholars have written dozens of articles theorizing as to the cause of the problem (among other things, lawyers don't want educated jurors), as well as offering suggestions as to how to solve it, from the simple ( e.g. fewer peremptory challenges) to the radical (no more juries).
              A friend of Prawfsblawg, Hillel Levin, and his coauthor, Jay Emerson, have just released a draft of an article forthcoming in the 2006 Connecticut Law Review that begins the process of debunking this little nugget. 

Assessing Connecticut census data and juries in federal courts, Levin and Emerson find that educated members of society are not underrepresented on juries; in fact, juries are generally better-educated than the community from which they are drawn!

This is interesting, and not something I know much about, but query whether there's anything about CT that might make its jury results unusual.  Perhaps the fact that it's among the wealthiest states in the country? I'm not sure.

The paper also considers why commentators make the assumption they do about jury education.  Among other explanations, the authors suggest that ivory-tower scholars simply haven't been reading the right materials: the practical literature on jury selection--the literature practitioners are likely to refer to--does not encourage lawyers to strike potential jurors based on their education levels.
Hmmm...something for us to learn, no doubt.
In the death-defying words of Larry Solum: Download it while it's hot!

Posted by Administrators on April 14, 2005 at 06:41 PM in Article Spotlight | Permalink


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» Study on Connecticut federal juries from PointOfLaw Forum
Dan Markel is excited by a study of Connecticut federal juries that he says helps "debunk" the understanding that jurors are less educated than the general population. But the paper's results aren't quite that strong. (Hillel Levin, "Is There a... [Read More]

Tracked on Apr 14, 2005 11:41:05 PM

» Study on Connecticut federal juries II from PointOfLaw Forum
Hillel Levin responds to my original post that remarked on a PrawfsBlawg post:... [Read More]

Tracked on Apr 15, 2005 1:05:34 PM

» Study on Connecticut federal juries II from PointOfLaw Forum
Hillel Levin responds to my original post that remarked on a PrawfsBlawg post:... [Read More]

Tracked on Apr 15, 2005 1:11:34 PM

» Study on Connecticut federal juries II from PointOfLaw Forum
Hillel Levin responds to my original post that remarked on a PrawfsBlawg post:... [Read More]

Tracked on Apr 15, 2005 4:42:27 PM


I've had too many vivid examples of the sock-em jury to readily accept that it's a myth -- and with juries empowered to issue multi-billion-dollar awards...

Did you read the big news story about the meritorious slip-and-fall case in which the jury unfairly ruled for the defendant? How about the race discrimination case that lost because of the all-white jury?

Of course we don't hear about such cases, because the media cover the unfair big verdicts, not the unfair zero verdicts. It's a tremendous example of the salience bias (see behavioral economics) in how we receive and process information.

I was a lawyer in NYC for 6 years before teaching. In some counties the jury pools were good for plaintiffs. In others, like Westchester County -- the mostly affluent, mostly white suburb just north of the Bronx -- a plaintiff can't buy a verdict. A very conservative friend of mine at a firm in Westchester who practices insurance defense litigation admitted there's a lingo for a plaintiff with a good case who loses in that county: "he got Westchestered."

There may be eight plaintiffs who "got Westchestered" for every one McDonald's coffee verdict -- but we'd never know from the media, and there aren't a lot of good statistics about that.

The point is that we can't say "hey, look at those big verdicts" as evidence of drooling illiterate jurors emptying out defendants' corporate coffers to every plaintiff able to call a slip-&-fall lawyer's 800 number.

Posted by: Scott Moss | Apr 16, 2005 12:45:37 PM

I agree with Dave. Most people who disagree with what juries do don't understand what happens in a trial. Much of what you read about a trial is not available to the jury. When you sit in a jury box, the information that you have is extremely limited and controlled. You cannot take notes or refer to any resource material. You must make very serious decisions with no way to walk away if you can't decide between two alternatives. The Judge will not tell you what alternatives you really have. Under the circumstances, juries mostly do the best that they can. Of course if you think about it, this logically means that they will tend to some of what Ted complains about, which is to over compensate for injury.

Posted by: Robb | Apr 15, 2005 6:26:53 PM

Wow. First, thanks to Dan for highlighting our little paper. And thanks to everyone for your comments.

Now, let me address some of the excellent points you've all made.

Dan and another commenter wonder whether CT is really a good model, since it is wealthier an perhaps better educated on the whole than other jurisdictions. We thought a great deal about this issue, but couldn't think of any way it would skew our results, for a couple of related reasons: (1) The wealth and education in CT is due largely to Greenwich and Fairfield County more generally. Once you head north and hit places like New Haven (and evirons), Hartford (and environs), New Britain, and Waterbury, all bets are off. (2) Relatedly, we don't compare the juries to the jurisdiction as whole, and certainly not to the population as a whole. If we did, surely our results would be skewed, because CT would obviously have better educated juries than, say, Alabama; and some seats of court within CT would have better overall education than others. Instead, we simply compare the jury to the specific venire from which it is drawn. So we may have a relatively uneducated venire or a relatively well educated venire; but the jury that comes out of that venire is likely to reflect the venire itself. If the same selection methods were applied in Alabama, we may have lesser educated juries than in CT, but we would not expect to have lesser educated juries AS COMPARED TO THE VENIRES from which they are chosen.

To Laura: (1) The trend is against automatic exemptions for professionals. I think it is a stupid idea; it isn't accepted in the federal system; and states (like NY) are fast moving away from it. But yes, you would expect that jurisdiction that retain such exemptions would have lesser-educated juries (and lesser-educated venires, since the doctors and such don't even get onto the venires). So to those jurisdictions, I say: get rid of your exemptions and adopt federal jury selection methods. (2) We make no assumptions or judgments as to the desirability of educated juries, although we do cite to literature and studies that suggest that better-educated jurors are better equipped to handle complex cases. All we do is examine whether the conventional wisdom (educated people get out of jury duty) is borne out in practice.

To Ted: I appreciate your comments very much, and I hope you'll post my response on your own blog. Your first comment hits the nail on the head when you suggest that our paper is limited by the length of trials in the data set. Ultimately, we must deal with the data set we are dealt, and we are very upfront about this limitation in the paper. It is why we intend to do a far more expansive study, once funding and time come through. But I will say this: (1) We have to start somewhere, right? This conventional wisdom has been around for at least three decades, and no one has bothered to even attempt to empirically test it. Further, as the conventional wisdom becomes more entrenched, it also becomes stronger. If you read the articles we cite in footnote four, you'll find that many of them don't distinguish among short and long trials, or complex and straightforward issues and evidence. Instead, they simply condemn the system and offer "scholarly" alternatives. We think that we've shown that if the system is infected, it is only some kinds of cases. Further, our findings are buttressed by the real world literature on the topic, which seems to have escaped the notice of the commentators. Finally, we do not argue that juries are adept at dealing with cases; we make no such normative judgments. The juries we have may be ill-equipped to deal with them, and it may be worth considering major changes. But not until we have the data to back it up, and that data that we have presented does not support the charge that educated members of society are excluded from juries. (2) You point to the differences between state and federal selection methods. You may well be correct, again. But we aren't willing to assume that you are correct. Instead, we are going to study it. And if state juries underperform federal juries in this area, then shouldn't we simply advocate that states adopt the federal system, rather than argue for wholesale, untested, and radical reforms based on no data? (3) On your blog, you argue that judges subtly favor one side or the other and get rid of educated jurors as they see fit. Our study would have picked this up; indeed, many of the cases in our study did plead out or settle before trial (but after jury selection), and we see no correlation between those that go all the way to trial and those that don't.

In short, yes, our study is limited. But since it is done blindly and systematically, don't you think it is less limited than your own anecdotal experiences; and don't you think it is less limited than the theory, conjecture, and assumptions that passed for evidence before? You case a critical eye towards our data and conclusions, as well you should, but I wonder whether you are quite so critical about the articles that contain NO data, but perhaps affirm your own assumptions? The proper response to our study, I think, is this: It is limited and it should be expanded and repeated. We agree.

To Dave Hoffman: Thanks. Do you want to be our P.R. rep?

Posted by: Hillel | Apr 15, 2005 9:23:36 AM

Forgive me, Dave, I've had too many vivid examples of the sock-em jury to readily accept that it's a myth -- and with juries empowered to issue multi-billion-dollar awards, even if over 90% of juries are conscientious deliberators, it takes only a small percentage to have severe negative social consequences. Much litigation is the result of the search for those outlier juries.

Posted by: Ted | Apr 15, 2005 5:51:32 AM

What a great paper. Most real-world looks at jury behavior and identity supports the idea that jurors are astonishingly good decision makers (I say astonishing, because the trial process doesn't help them, and the instruction process probably actively hurts them). Nevertheless, you constantly see scholars (and law professors in ad hoc classroom attacks) pooh-pooh juries. Studies like this one ought to change people's minds, but I think they won't, until law professors (through mechanisms like reducing exemptions for lawyers mentioned above) are forced to serve on more juries and are confronted with vivid counterexamples to the lazy/sock-em/jury myth.

Posted by: Dave Hoffman | Apr 14, 2005 11:57:41 PM

I comment at Point Of Law. In short, this paper doesn't tell us much, because, as the paper acknowledges, it's the longer trials where the education factor is most likely to come into play, and this paper doesn't look at the longer trials. Second, the paper ignores the distinction between federal courts, which have a much wider-ranging venire, and state courts, where plaintiffs forum-shop for a favorable venue with the narrow type of venire that is likely to be plaintiff-friendly.

Posted by: Ted | Apr 14, 2005 11:50:12 PM

I haven't read a enough of the scholarly of literature on this subject, so I'll be interested to read this article on the CT experience. Some general thoughts, though. Jury pools of course are limited by the demographics of the local community from which the court draws its jurors. If a court sits in a poor county with sub par educational opportunities, people should not expect to see as many investment bankers or doctors appearing for jury duty as in Greenwich, CT. In addition, even in more affluent communities, or if you look to juror demographics state-wide instead of by county, some jurisdictions maintain automatic jury duty exemptions for many “educated” professions, such as lawyers, doctors and judges. As Laura commented, New York eliminated its own exemptions a few years ago, and suddenly we had all kinds of doctors, lawyers and other “educated” professionals showing up for jury duty. Indeed, a friend of mine had a judge as a juror in her recent drug trial, and I just finished a burglary trial with a corporate lawyer sitting on the jury.

But, on a broader level, I wonder about the apparent assumption that better educated jurors necessarily result in “smarter,” or as Laura suggested, “improved quality” juries. Although a banker might have the technical expertise to make a complex securities trial easier to digest, or the scientist the DNA evidence in a rape or paternity trial, most trials require of jurors in the end only the simple ability to assess individual human accuracy and truthfulness as part of a larger story to be told. In other words, good old common sense and fair mindedness. I know it sounds like a cliché, but unless you’re trying a strictly technical claim, it’s quite true. And, I have yet to identify any necessary correlation between higher education and these traits. On the contrary, I have met highly educated people who appear to have little or none, and many modestly educated people who have heaps. So, perhaps the inclusion of more “educated” professionals in the jury pool benefits the trial process, not because of their greater education, but because they enlarge and diversify the pool of potential jurors with common sense and fair mindedness. Then again, in Manhattan, it also has seemed to result in more hung juries …

Posted by: Brooks Holland | Apr 14, 2005 10:30:06 PM

Ever since NY state changed its rules for jury duty a few years ago, making it much more difficult for professionals (lawyers, doctors, judges, even Mayor Guiliani) to get out of serving, the quality of the average jury pool for New York County has improved. Moreover, attorneys, even criminal attorneys, often make it through voir dire and serve. I don't think it's just a CT or a federal phenomenon.

Posted by: Laura | Apr 14, 2005 9:33:42 PM

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