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. .