BUSINESS ON TRIAL: THE CIVIL JURY AND CORPORATE RESPONSIBILITY by Valerie P.Hans. New Haven, CT: Yale University Press, 2000. 269 pp. Cloth $35.00. ISBN: 0-300-08206-1.

Reviewed by William Haltom, Department of Politics and Government, University of Puget Sound.

If the accession of George W. Bush reenergizes tort reform, expect the recrudescence of more than personnel from his father's administration. When J. Danforth Quayle and his Council on Competitiveness paraded agitprop, the pageant left a trail of fanciful litigation explosions, fabricated tort taxes, feared plagues of lawyers, and fantastic American litigiousness, as well as tort tales ("Stories That Show a Legal System That's Out of Control," according to the web page of the American Tort Reform Association). All of the above may be dumped into or on political discourse anew if the cavalcade of tort reforms gets rolling. Reason and evidence may have neutralized tort tales and canards among academics, but in legislative, electoral, and popular venues horror stories and shibboleths remain potent.

Valerie P. Hans's laudable assessments of misinformation and disinformation about the civil jury may do little to overcome the propaganda of tort reformers except among well-informed citizens, but every student of courts and torts will profit from her book. Hans, a professor of sociology and criminal justice at the University of Delaware, tests claims about how juries treat businesses in civil cases. She assembles myriad charges, and then she acquits the civil jury system of nearly every specification. She reaches a few Scottish Verdicts ("Guilt not proved") but more often establishes a preponderance of evidence opposite to criticisms of civil juries.

The author proceeds so methodically and dispassionately as to win over every informed and open-minded reader. If there are no "Perry Mason" moments at which witnesses break down and admit that they were making it up as they went along, the "testimony" of Peter Huber, Marcia Angell, and other "experts" is discredited all the more effectively by Professor Hans's fastidious craft and consistent fairness. (The author does establish jurors' tendencies to believe tort tales and anti-litigant and anti-lawyer cant, so jurors' gullibility might still be derided, albeit not by those who created the cant and the tales.)

Professor Hans's findings diverge from common beliefs because she undertakes to replace anecdotes and assumptions with information and evidence. Her results, almost always consistent with research to date, issue from three methods of inquiry. The author interviewed 269 jurors from 36 civil cases that involved businesses or corporations and were tried to a verdict or a hung jury. She conducted a statewide survey of respondents' views of business regulation and civil litigation. In addition, she designed experiments with mock juries to focus on telling variables and contexts. Given this methodical and methodological

Page 15 begins here

triangulation, her findings must instill great confidence.

Among Professor Hans's interesting findings is the marked tendency of jurors to be suspicious and even dismissive of victims and their grievances. Critics who assumed or asserted the ignorance of jurors may thereby have overlooked what jurors know well: everyday realities and everyday people. Because jurors believe that they understand what reasonable persons will or should do, plaintiffs often find civil juries a tough audience. Hans reminds readers that, "the urge to compensate innocent victims is balanced by jurors against their beliefs that plaintiffs often try to capitalize on sympathy and receive compensation that is not rightfully theirs" (p. 47). Mindful that whiners and chiselers abound, jurors often begin cases presuming the plaintiff's culpability and become persuaded of the defendant's liability only slowly, reluctantly, and judiciously. When one recalls, as noted earlier in this review, that jurors often come to voir dire convinced that the polity is "sue-happy," one wonders if civil plaintiffs must overcome biases far greater than those that task business defendants.

A few of Professor Hans's findings may assuage tort reformers, however. Although jurors cheerfully accept the legal fiction that corporations are persons, for example, they tend to see corporate persons as highly knowledgeable and expert in their areas of specialization. This means, Professor Hans shows, that jurors expect more of corporate defendants than they do of ordinary individuals. Business defendants are expected to measure up to norms that physicians and other professionals must meet to avoid charges of malpractice. Dr. Hans reminds her readers that this tendency may be true outside the United States: Japanese jurors too tend to expect corporations to anticipate and to avert what less knowledgeable and less organized defendants might be forgiven for not having foreseen.

However, most of the case against the civil jury takes a beating. Hans concludes that juries simply are not pro-plaintiff as a general matter. Socialized to individual responsibility as a cherished value and sensitive to the evils of litigiousness, jurors tend, if anything, to come to cases skeptical of victims and their claims. She concedes that sympathy for civil plaintiffs and civil complaints may vary from jurisdiction to jurisdiction. On the whole, however, she finds too little evidence for any pro-plaintiff biases among civil jurors. The evidence that Professor Hans and others have discovered, then, runs decidedly opposite to the common assertion that juries favor Davids over Goliaths.

Nor are most jurors anti-business, as those sympathetic to Goliath (or other Philistines) have insisted. Indeed, jurors tended to endorse business and to abhor the purported tendency of litigation to undermine companies or the economy. When jurors expressed hostility towards business defendants, their judgments were explicitly based on outrages in particular cases. Professor Hans concludes that jurors' animus towards this or that business almost always follows from jurors' awareness of what a given commercial entity has been doing or failing to do.

The myth of "Robin Hood" juries that use trials to redistribute wealth found little support as well. Professor Hans's experiments did not disclose any "deep-pockets" effects, just as similar experiments elsewhere had failed to uncover support for

Page 16 begins here

soaking the rich to benefit the poor or the pathetic. However useful political invocations of "Robin Hood" juries may be, in practice such juries turn out to be about as fictitious as their namesake.

By taking critics seriously, Professor Hans has undermined their criticisms and credibility in a concise and compelling manner. Her labors need not, of course, affect attacks on civil juries or civil justice, since many or most of those attacks depend so little on materially valid premises and so much on forensically sound presuppositions. Nonetheless, Professor Hans has made it harder for the well-informed to claim that their opinions of the civil jury are based on expertise or experience rather than expedience.

Copyright 2001 by the author, William Haltom.