I have before expressed my concern regarding the innumeracy of the American public generally and jurors specifically. In a recent opinion (pdf) from the Indiana Court of Appeals, we are faced with the prospect of a jury that struggled with a simple percentage multiplier but are, nonetheless, asked to embrace the legal fiction that they understood all of the damage calculations put forth as evidence and rendered a verdict accordingly.
This was a personal injury case where comparative fault applies. The jury is asked to calculate the Plaintiff’s total damages, to calculate the Defendant’s percentage of fault, and to multiply the two things to come up with the damage award to the Plaintiff.
Here, the jury apportioned fault as 62% to the Defendant and 38% to the Plaintiff. Then, it stated that the Plaintiff’s total damages, without regard to fault, was $207,600. But, when asked to multiply the two things together, it came up with $336,300.
The court sent the jury back to come back with a verdict that made sense. Whereupon the jury came back with a verdict form that struck out the $336,300 and replaced it with $128,712. The court accepted that verdict and entered judgment in favor of the Plaintiff for that amount.
Afterward, a juror approached counsel for the Plaintiff, saying, “This is bullshit, all of us wanted [the Plaintiff] to get $336,300.” So, the Plaintiff attempted to have the verdict set aside and get testimony from the other jurors to determine what they “really” meant. The Court of Appeals explained that verdicts couldn’t be challenged in this fashion. If we allowed this kind of interrogation of jurors, we’d never see the end of litigation. (Also, I suspect, we’d find that a good number of jurors would have a good deal of trouble articulating the basis of their calculations.)
Most of the explanations for why the jury in question (and, particularly, the juror who approached counsel for the Plaintiff) did what it did are not reassuring. I’m still pretty comfortable with jurors determining liability — most folks have a decent sense of what’s fair and what’s not; and when presented with a binary choice of liable or not liable approach the task fairly.
But, when asked to put a dollar amount on pretty vague notions like pain and suffering and on somewhat challenging concepts like future earnings and the present value of money, I’m not confident the general public is up to the task. This is particularly true given the years of blank stares I’ve seen in collection cases when attempting to explain the concept of interest.
I wonder if it would be worth exploring a more bifurcated process where juries still make liability determinations; but where maybe professional panels make damage calculations. You could keep the panels and juries separate such that liability determinations and percentages would be decided independently of total damage calculations.
There’s certainly a downside to a jury pool selected from the general public. What I find most intriguing is the fact that the jury found the defendant 62% at fault. Is fault determination really that granular?
Yeah, the fault percentage determinations are pretty artificial; but I don’t really have too much trouble with that. I guess we could limit choices to 51%, 2/3, 3/4, and 100% or something. (Liability of 50% and less on the part of the Defendant, in Indiana, means the jury is supposed to enter a verdict of $0 for the Plaintiff.)
I don’t know the problem is so much juror “innumeracy” as it is our educational system’s failure to treach basic math. An acquaintance was in a Burger Chef—sorry, nostalgia prohibits me from calling it Hardee’s, or Hook’s CVS for tha matter—and the computer/cash register was down. The counter person told him she could not sell anything because they could not figure the prices of items, including tax. He totaled his proposed purchase, multiplied by whatever the percentage at the time was for sales tax here—in Marion County it depends upon when the latest stadium had been built—and showed he the number. She acted amazed and asked “How did you do that?” Kids become jurors. Oh, thats right, juror lists are derived from voter lists. Happy thoughts.
And, for what it’s worth, I’m not saying that jurors can’t do math due to lack of native intelligence. In a lot of cases it could be that no one ever taught them or, if taught, they have forgotten for lack of use. Whatever the explanation, the confidence of the legal system in the ability and inclination of the general population to calculate damages as a dollar figure is not necessarily well placed.
Since this story is lacking off-the-wall commentary, I submit that Hardee’s is nothing like Burger Chef, therefore no need to hold on to the old name out of sense of nostalgia. :)