by Matt McCusker
As a litigation consultant, it has been my pleasure to work with judges across the country to help spread the word about the benefits of well-designed voir dire that truly unearths bias. However, I have also run into friendly debates with judges who are not thrilled with my line of work. These individuals typically feel that the use of professionals to search for bias in potential jurors is more often utilized to manipulate the system, than to protect it.
The evidence that I most often hear in support of this perspective is that (with or without litigation consultants)…
“Juries get it right 95% of the time.”
This has become a very common turn of phrase and is often cited as proof of our legal system’s solid design. However, I would like to ask a few questions that put this gem of wisdom on the hot seat.
1) Who decides the definition of right?
I sincerely believe that every case with a verdict has at least one side which believes the jury did not get it right. By my math, that puts us somewhere around 50%. If we add in all of the verdicts that anger both sides and multi-party lawsuits, I believe our number of discontent rises even further. In fact, I would suggest that a significant majority of parties (and their attorneys) think the jury got it wrong.
2) Where is this 95% statistic coming from?
So, if it is not statistically likely that this 95% number comes from the parties or their attorneys, where does it come from? My best guess is that this phrase originated with the group that most often uses it: our judges. No doubt, as neutral observers of the entire process, no one else would have the required knowledge to offer such an opinion.
3) What does it mean when the most powerful person in the courtroom thinks juries get it right 95% of the time?
Here is where I get a little nervous. The vast majority of my experiences with judges have been great. However, it is disconcerting that so many judges’ opinions about the case are in line with the juries they oversee. It leaves me with three possibilities (or a combination thereof):
a) In 95% of cases, there is a clear winner and loser that most people would agree on. In fact, this decision is so clear, that juries and judges are consistently on the same page about verdict and damages.
b) Judges tend to forget about the cases where they disagreed with the jury, so the 95% number is based on hindsight bias. Who wants to remember the cases one oversees where the wrong parties (in your opinion) are celebrating?
c) Those who believe “juries get it right 95% of the time” are subconsciously helping the jury agreement with their own opinion. Saying this may get me in a little hot water with some of the judiciary. However, I believe it is something that should be talked about.
The American Society of Trial Consultants’ (ASTChttp://www.astcweb.org/public/index.cfm) has Professional Standards which prevent members from publishing win/loss records. There are several reasons for this, but one of the most powerful is the inability to define “wins” and “losses.” Is a plaintiff verdict for $1 million in a case that was supposed to be worth $10 million a win or a loss, and for whom? I suggest the definition of “right” falls into a similar category.