When big corporations and insurance companies take aim at our civil justice system, they often point to the problem of “runaway jury verdicts” and “jackpot justice.” They argue that juries made up of ordinary citizens cannot be trusted to decide issues like whether a hospital or doctor committed malpractice, or who caused a vehicle crash, and what level of compensation would be fair and reasonable for those who have been injured. Oddly enough, these same corporate interests generally have no problem allowing a jury to decide a criminal case, where the very life of the defendant may hang in the balance. But as for holding them responsible when a serious injury or death has resulted from a car crash, trucking accident, nursing home neglect or medical malpractice, juries are simply too liberal and unsophisticated for the job.
Or at least that’s the argument they make when these corporations spend huge money lobbying state and federal legislatures for more and more “tort reform.” Laws which limit the amount of compensation juries can award, and which place artificial restrictions on the evidence juries can hear, are generally referred to as tort reform (“tort” is legalese for a careless act that causes injury or death). Tort reform laws stack the deck in favor of defendants and their insurance companies. These laws allow them to win the case by persuading courts and juries to decide in their favor, but also make sure that if they lose the judgment will be artificially limited or “capped.” With tort reform, defendants can win as much as ever, but if they lose the injured person or family will only get a limited amount. With the financial resources corporations have to spend on defending cases, and tort reform laws passed to give them artificial protection, the deck is increasingly stacked against people and families who have been injured.
So, having lobbied for and received lots of tort reform laws, why should large corporations and their insurance companies worry about “runaway juries?” Well, it turns out, they don’t. The truth which these “tort reformers” don’t tell the lawmakers is that juries are not out of control. In fact, juries tend to be very conservative both in terms of finding fault (“liability”), and awarding compensation (“damages”). How do we know that’s true? We know because, time after time, when insurance companies are given the choice to present their case to a jury, or just to a judge, they choose a jury! This author himself has seen this over and over when filing lawsuits here in Cincinnati, Ohio and elsewhere in the Midwest. In fact, in one recent case a prominent insurance company forgot to ask for a jury, and then when realizing its mistake went to great lengths to ask the Court to allow it a “do over” so the case could be presented to a jury.
Big corporations and insurance companies have learned that they can have their cake and eat it too. To get the laws they want, they aggressively lobby state and federal legislatures with anecdotal stories of “runaway juries.” But once they’re done lobbying, and they have the legal deck stacked in their favor, they choose to present their cases to those same juries. They know, and have always known, that juries are not out of control. If they were, why would insurance companies work so hard to make sure they get a “jury trial?”