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.