Vol. 5 No. 10 (October, 1995) pp. 255-258
CIVIL JURIES AND THE POLITICS OF REFORM by Stephen Daniels and
Joanne Martin. Evanston: Northwestern University Press and
American Bar Foundation, 1995. xii + 318pp. Cloth $35.
Reviewed by Herbert M. Kritzer (Department of Political Science,
University of Wisconsin -- Madison. E-mail:
kritzer@polisci.wisc.edu)
Scholars following research on the civil justice system have for
sometime benefited from the excellent work of Stephen Daniels and
Joanne Martin on jury verdict patterns. Building on the jury
verdict reporter research pioneered at the RAND Corporation,
Daniels and Martin have scoured the country to locate
publications that provide systematic, reliable reports of civil
jury verdicts. Drawing upon a large number of jury verdict
reporters, Daniels and Martin have previously published a series
of articles on topics such as variations in jury verdict
patterns, punitive damages, and medical malpractice. In this new
book, they have brought together many of these analyses and
integrated them under the rubric of the civil justice reform
debate. For their empirical analysis they have assembled data
from jury verdict reporters from 82 sites covering 100 counties
in 16 states (often expanding the data base from that used in
their earlier publications).
1, entitled "Juries and the Politics of Reform,"
introduces and develops the politics of reform framework. Central
to the authors' argument is the importance of public perceptions
and what they call the "politics of ideas." Advocates
of reform have engaged in a long-term, systematic, and
increasingly successful effort to portray the American civil
justice system as "a system run amok, in crisis, [and] out
of balance." The elements of this crisis include an
explosion in the volume of litigation, "skyrocketing"
jury verdicts, the limited competence of juries to decide complex
technical questions, capriciousness and bias of juries, and just
a plain "threat to the American way of life." The
authors cite many of the old chestnuts of the reform proponents
-- the supposed $300 billion "tort tax," the
unwillingness of corporations to introduce innovative new
products out of fear of liability consequences, the loss of
American competitiveness in world markets -- and then go on to
look at the critics of the reform proponents, quoting approvingly
[and with emphasis] legal journalist Kenneth Jost: the
"message [of reform proponents] is fundamentally false, the
product of dubious anecdotes, questionable research, concocted
statistics, factual and legal misstatements, and willful
disregard of contradictory evidence." (p. 23). The politics
of ideas has to do with the process by which one or the other
image of the American civil justice system comes, or has come, to
be accepted by the public.
Chapter 2 develops the authors' image of the politics of ideas.
Central is the process of agenda setting: how does an issue come
to be an important part of the public policy debate? Daniels and
Martin draw heavily upon John Kingdon's model of agenda setting
which brings together "problems, policies, and
politics" (p. 32); for the authors' purpose, the most
important factor in the model is the "window of
opportunity" which, they argue, reform proponents have
sought to create by convincing the public that the civil justice
system is running amuck. According to the authors one of the key
tactics reform advocates use is horror story anecdotes, many of
which have become almost mythic, even though the public
presentation of the cases is often at odds with what actually
happened. (Unfortunately, the authors consign their description
of the reality of these fabled cases to notes which are not at
the foot of the page, and which the publisher failed to make
easily accessible by using page number references as running
heads in the notes section.) More central to the authors'
empirical analysis is the reform advocates' depiction of the
civil jury, which is portrayed as a source of "explosive
growth in damage awards," as being taken in by "junk
science," and as creating a "liability insurance
crisis."
In Chapters 3-6, Daniels and Martin provide a detailed
description of jury awards drawing upon their large data set. In
each of these chapters, they first summarize the arguments
advanced by reform advocates, particularly as those arguments
deal with juries, and then report whether their data verify the
existence of the patterns described by reformers. In Chapter 3,
they show that both plaintiff win rates and typical jury awards
(which they measure in terms of medians) vary sharply from
jurisdiction to jurisdiction, and across types of cases (with
higher awards in medical malpractice and products liability than
in auto torts or contract cases). In several jurisdictions they
are able to look across time from 1970 through 1990; rather than
showing a clear pattern of increasing plaintiff success, the
pattern shows fluctuations, with some jurisdictions increasing,
some decreasing, and others staying about the same. As for award
amounts, California does show a sharp increase, and that may
reflect a combination of increasing jurisdictional minimums and
attorneys being more selective in the cases brought to trial (the
number of jury verdicts fell sharply in California); with the
exception of Cook County, Illinois, there is little or no change
in the other jurisdictions the authors looked at. These patterns
contrast sharply with the portrait advanced by reformers.
Chapter 4 is a detailed look at medical malpractice verdicts
(interested readers might also want to look at Neil Vidmar's new
book on medical malpractice juries). Daniels and Martin discuss
the reform rhetoric concerning medical malpractice verdicts, in
several places describing graphs used by reform proponents to
argue that there had been sharp increases in such verdicts (their
discussion would have been much better if they had reproduced the
graphs involved, at least some of which appeared in government
reports, and hence would not involve copyright issues). The
authors also discuss the various medical malpractice reforms
which various states have adopted, and the efforts of researchers
to ascertain what, if any, effects those reforms have had. Their
own empirical analysis starts with the observation that various
studies have shown that relatively few instances of medical
negligence actually lead to a claim or a lawsuit. With their
verdict data, they are able to show that median awards are
clearly related to the severity of injury. More generally, they
conclude from their analysis of medical malpractice verdicts that
the system tends to favor medical providers rather than victims,
and that in the aggregate the system, "rather than being
chaotic, the malpractice system is orderly, stable, and
dauntingly complex" (p. 147) .
The general theme continues in Chapters 5 and 6. Daniels and
Martin first discuss the image advanced by reformers of products
liability (Chapter 5) and punitive damage awards (Chapter 6) and
then show that patterns of verdicts make sense when carefully
examined. For product liability, they examine nature (severity)
of injury, setting of injury, and type of product involved. Their
data are rich enough that they can look specifically at injuries
arising from lawn mowers and none of these cases in their data
set resulted in a plaintiffs' verdict! They also show that
looking at products verdicts over time is extremely tricky
because the mix of products involved in the cases going to trial
changes. Regarding punitive damage awards, Daniels and Martin
show that few plaintiffs' verdicts involve such awards; in their
overall data set, 8.3% of successful plaintiffs obtained a
punitive award. Moreover, punitive awards are particularly rare
in medical malpractice cases. In most locations, the median
punitive award is under $100,000. Over time, the rate of punitive
awards increased in some types of cases, but fluctuated without a
clear pattern in others; the median size of punitive damage
awards was relatively constant in three of the four locales with
enough awards for longitudinal analysis -- only in Los Angeles
did the size of punitive awards increase sharply (recall again
that the number of cases going to trial in California declined
over time).
Chapter 7 closes the book by returning to the "politics of
ideas" theme. The authors' position is clear: policy-making
needs to be based on solid, reliable, systematic data rather than
distorted, anecdotal accounts. Of course, policy-making can be
driven by principle, in which case the role of empirical data may
be less, but in the civil justice debate reform advocates have
built their case on an image of the system in operation that does
not conform to that which emerges from analyses based on
systematic, reliable data. While Daniels and Martin direct the
bulk of their critique toward reform advocates, they acknowledge
that defenders of the system can just as easily turn to anecdotal
evidence that distorts rather than informs. Some reform advocates
have criticized researchers for always saying, "we need more
data, we need more research," and it often seems as though
we get one study after another. However, law and social science
scholars have clearly shown that changes made to deal with
supposed problems often fail to have the desired effects because
the supposed problems don't exist, or don't take the form the
changes have assumed. Furthermore, as with Daniels and Martins'
analysis, careful examinations of justice system processes often
show a sharp disjuncture between rhetoric based on anecdotes and
reality based on systematic analyses.
One of the problems that Daniels and Martin raise, but don't
really confront in this last chapter is the connection between
research funding and policy advocacy. When research results
comport with the interests of the funders of the research, the
results are portrayed as tainted. On the reform side, defenders
of the current system dismiss the work of George Priest as biased
because his work is funded by conservative groups such as the
John M. Ohlin Foundation; on the status quo side, Michael
Rustad's research on punitive damages in products liability cases
has been dismissed by reform advocates as biased because Rustad
was funded by a foundation closely tied to the plaintiffs' bar.
Daniels and Martin point out that funding researchers, research
projects, conferences, and publications is all part of the
politics of ideas. This is true, but it begs the question of how
we should evaluate the research. Generally, advocacy groups
evaluate research based on its conclusion. Scholars, on the other
hand, need to evaluate research based upon factors such as the
quality and limitations of the data, the appropriate of the
analyses of those data, and the availability of alternative
interpretations of the results of those analyses.
Overall, Daniels and Martin have produced a readable, useful
analysis, both of the reality of jury verdict patterns and of the
policy rhetoric surrounding the civil jury. At places the fit
between the authors' politics of reform framework and the
specifics of their analysis of their jury verdict data seem a bit
strained, and some readers may feel that they are getting bogged
down in a lot of detail. However, central to the authors'
argument is the need to come to grips with that detail if policy
decisions are to improve the operation of the system, and even to
determine whether change in the system is really needed. One of
the great ironies of the debate over the civil justice system
lies in Peter Huber's phrase "junk science" (p. 245);
Huber argues that courts have too often relied upon dubious
scientific claims, often to the detriment of the larger
community. In fact, the evidence relied upon by many reform
advocates would not even rise to the level of "junk
science". Daniels and Martin have effectively turned the
argument of the junk science critics back onto those very critics
by showing through careful social science that the alleged
problems related to the civil jury (skyrocketing awards,
capriciousness, etc.) are not in fact found in the day-to-day
operation of the civil justice system.
This review would not be complete without some observations on
the production of the book. I already noted my displeasure at the
handling of the notes. Given modern production systems which
automate the page layout process, I do not understand the
aversion of academic publishers to footnotes which actually
appear at the bottom of the page; this is one book where that
arrangement would have greatly improved the book because the
notes contained extremely important information. There were a
number of other editorial problems with the book. Given the
authors' discussions of presentations of data by reform
advocates, reproductions of those presentations (particularly
graphics) would have made the book much more readable and
interesting. At some places, the physical production of the book
is just plain sloppy. Usually, this involved laying out tables:
on one page, the text of a table and the main text physically
overlap and on another the table extended beyond the margin of
the page; on many pages, the layout was cramped with the main
text starting very close to tables or figures. I am surprised
that the editors at a reputable university press would let a book
that looked like this one get out the door. Perhaps Northwestern
University Press simply lacks experience in producing this type
of book; perhaps the Press's production process failed to give
the authors the time to see actual page proofs; perhaps the
authors (or the in house editorial staff at the Bar Foundation)
failed to catch some of these problems. Whatever their cause,
these kinds of cosmetic flaws detract from an otherwise important
book. .
Copyright 1995