The Demise of the Civil Jury Trial: Part II

By Mark A. Drummond, Judicial Director

In our November newsletter I wrote about a medical malpractice case involving the death of a little boy. The jury returned a verdict of $10,000,000 in favor of the parents and his two siblings. The appellate majority of three, after ordering the parties to brief settlement negotiations and after “substantial collegial discussion,” decided to reduce the award to $3,000,000. The parents were also given the option of a new trial. One factor in the decline of jury trials may be judicial tinkering with hard fought jury verdicts.

The majority opinion referenced Averroes’ Commentaries on Aristotle; the spire atop the Great Cathedral in Salisbury, England; Hamlet; and a footnote to Scientific American magazine. Two justices dissented—this column addresses those dissents.

Let’s begin with the spire. The majority noted that the spire is “…exactly 3.2 feet off dead center in the direction of the southwest prevailing winds.” This adjustment has allowed the spire to survive for hundreds of years. The majority then wrote “Greatness in architecture is not achieved by creating a good structure from superb materials; it is achieved by creating a superb structure from mediocre materials.”

The majority applied this analogy to the “imperfect” judicial system, referencing the “unbridled discretion” of a jury on one end of the scale versus plaintiffs having to put up with “…outrageous expense, incalculable inconvenience, and inordinate delay.” What is most curious about the last part of this balancing is that the majority also stated that without years of pretrial motions and discovery, “…defense law firms cannot build a file to justify fees, and large fees are necessary to sustain the overhead of large firms.”

The majority then stated, “Without the occasional jury award that is at least ten times greater than what the parties would have settled for immediately after the tragedy, there would be no incentive on the part of clients to temper the file building, anti-settlement proclivities of their lawyers by urging quick payment of just claims.”

One wonders whether any party to this suit knew that the appeal would involve an analysis of what it takes to sustain the overhead of large firms juxtaposed against the effect of large jury verdicts. In a footnote, the majority stated that $300,000 would have been an appropriate settlement amount if paid within 60 days of the child’s death. Evidently, neither of the lawyers who was actually handling the case agreed with this footnote since the last settlement demand was $5,000,000 and the last offer, after years of litigation, was $220,000.

The majority’s analogy then comes full circle, with, “The similarities between the legal system and Salisbury, then, become apparent: Judges understand the imperfections in the materials with which they must work and attempt to achieve some structural balance by offsetting one imperfection against another.” The majority stated that tort law should not be a “…Las Vegas game of chance…[or] a lottery where everyone pays high insurance premiums so that enormous windfalls can be allocated randomly.”

It is this type of judicial second-guessing that undermines the sanctity of a jury verdict. The only safe jury verdict is the not-guilty verdict in criminal cases. When it comes to establishing an amount for loss of society how are we, as single judges, any more qualified than 12 jurors comprised of mothers, fathers, sons, daughters, sisters and brothers? So, what say the dissenters?

 “The Great Cathedral in Salisbury, England…is not as far ‘off dead center’ as the legal architecture of the majority opinion on the issue of … remittitur in a case involving indeterminate damages,” begins the first dissent. The justice then explored a long line of precedents establishing that the fixing of damages, especially for loss of society, is exclusively a jury function to be tinkered with only if it is a clearly excessive amount fueled by passion or prejudice. The justice then cited the constitutional underpinnings of the right to a trial by jury in a civil case. The first dissenter stated that no amount of money could compensate for “…the inconsolable grief…” and further noted that the award would be divided among the four remaining family members.

The second dissenting justice dove deeper into the numbers and into the majority’s analysis of the economics of litigation. The jury’s verdict was $10,000,000. The available insurance coverage was $10,250,000. Amazing isn’t it?

The second dissenter noted that the insurance companies had set the limit of $10,250,000 as the maximum amount, “…for the most harmful acts of malpractice anticipated by the insurance companies.” The jury then, without knowing the policy limits, returned a verdict remarkably close to those limits.

In the book The Wisdom of Crowds, the author tells the story of the recovery of U.S. submarine Scorpion. Simply stated, the premise of the book is that a group is smarter than any one individual in that group. The Scorpion sank on its way back to port, but no one knew why the submarine sank, how fast it was traveling, or its rate of descent. The area where it could have sunk was 20 square miles and thousands of feet deep.

The naval officer in charge came up with a novel plan. He assembled teams from different professions including mathematicians, submarine specialists, and salvage operators. He had them work independently and then put each of their location estimates into a theorem. None of the individual estimates was close to where the sub was found, but their collective estimates were within 220 yards of the submarine. Isn’t this what juries do every day?

The second dissenter then took direct aim at the majority’s Salisbury Cathedral analogy, “Thus, according to the majority, jurors are ‘mediocre materials,’ who operate not on reason, but ‘on largely emotive principles,’ particularly in comparison to judges, who are ‘educated in law as a science.’ Never has a more arrogant statement been uttered by this Court in support of blatant judicial fiat.”

The justice concluded by reaching back to the early 1900’s to G.K. Chesterton. All citizens of the town of Battersea with last names beginning with “C” were summoned, and Chesterton was among them. Chesterton recounted snippets of the cases he sat on, with one being a woman accused of neglecting her children. He noted that it appeared that someone had also neglected her. He wrote, “Never had I stood so close to pain; and never so far away from pessimism.”

The justice ends with this lengthy quote from Chesterton, which is one of the most eloquent statements on the sanctity of the collective wisdom of a jury verdict, “Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. It wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity.”


Roberts v. Stevens Clinic Hosp., 176 W. Va. 492, 345 S.E.2d 791, 1986 W. Va. LEXIS 496.
James Surowiecki, The Wisdom of Crowds, Anchor Books, 2005.
Gilbert K. Chesterton, Tremendous Trifles: The Twelve Men, 1922.


This piece is published with permission. A version of this article will appear in Litigation News Vol. 45, No. 2.

The Hon. Mark A. Drummond (ret.) is the Judicial Director of the Civil Jury Project. He was a trial lawyer for 20 years before serving on the bench for 20 years as a trial court judge.