As part of a study of changes to Arizona’s civil procedures in the 1990s, Neil Vidmar, Russell M. Robinson, II, Professor of Law and Professor of Psychology, is involved in a project allowing an unprecedented view into the behavior of juries — a view that speaks volumes about the communication, biases and impressions of jurors everywhere.
Vidmar and his co-investigator, Professor Shari Diamond of the American Bar Foundation and Northwestern Law School, undertook the project at the invitation of the Pima County (Tucson) Arizona Court, with the approval of the Arizona Supreme Court.
Vidmar and Diamond have spent about four years reviewing videotapes of jurors and their interactions with one another during civil trials. The study, soon to be the subject of an Arizona Law Review article, was designed to determine the effects of changes to the court system in Arizona that allowed jurors in civil cases to ask questions during trials, take their own notes, and, most importantly, discuss evidence with each other during breaks and at other times before they’ve been instructed in the law by the judge and before official deliberation.
“Those were big changes that created a lot of controversy,” said Vidmar, who has written numerous articles on criminal and civil juries, is co-author of Judging the Jury (1986), author of Medical Malpractice and the American Jury: Confronting the Myths About Jury Incompetence, Deep Pockets and Outrageous Damage Awards (1995), and author of World Jury Systems (2000). “Every other jurisdiction forbids jurors from discussing evidence with anyone until the judge instructs them on the law.”
For the project, Vidmar and Diamond were allowed to videotape juror interactions in 50 trials from 1998 to late 2001. In 37 of the trials the jurors were allowed to talk about the cases, and in 13 — used as a control group — the jurors had to refrain from such discussion until official deliberation began. Researchers also were provided with tapes of the entire trials to reveal the context for juror discussions.
The taping of jurors is exceedingly rare, and such a project might never again be undertaken, said Vidmar, noting that the sanctity of the jury room is not lightly intruded upon. The research was supported by grants from the National Science Foundation, the State Justice Institute and the American Bar Foundation with additional help from Duke Law School and Northwestern Law School.
One major goal of the research was to determine whether juror discussions before the judge’s instructions on the law tainted juries and made them more sympathetic to the plaintiff’s side, which makes its case first. Many lawyers had feared that Arizona’s policy would lead jurors to make final decisions before hearing important points to be raised by the defense, even though the jurors are admonished to not to draw conclusions as a part of their early conversations.
The research showed, however, that even though a few jurors did express opinions prematurely, those jurors did not appear to bias the outcome of entire juries. And in complicated or long proceedings, the ability to discuss evidence actually helped jurors keep facts straight. The cases represented a cross-section of Arizona’s civil litigation, including medical malpractice suits, cases related to auto accidents and contractual disputes.
“I think we are clear that in complex or lengthy cases this is helpful to the jurors,” Vidmar said. “We found no evidence that it biased the jurors in any way.”
A study of the Arizona reforms Vidmar published with several co-authors in 2002 showed that the changes, known as Rule 39 (f), resulted in few, if any, negative side-effects. Any problems, they concluded, could be worked out with minimal changes to the procedures.
For Vidmar, though, the findings about Arizona’s court system are only a beginning. He and Diamond plan to use the research for additional articles and probably a book about how jurors go about their work and eventually come to conclusions. Those are areas in which most observers are seriously misinformed, he said.
For example, stories in the media that have attracted much attention have led many people to believe that juries typically side with plaintiffs in civil cases and readily award outrageous sums to them. Although that undeniably happens sometimes, Vidmar said, their research shows that jurors tend to harbor substantial skepticism about plaintiff claims. Further, even though jurors are not supposed to consider a plaintiff’s own insurance in cases such as personal injury, many still wonder aloud if it’s fair for a plaintiff to receive payment from her own insurance and then be paid by a defendant for the same injury.
“Jurors don’t believe in double compensation,” he said. “They say ‘her medical insurance probably took care of this, so why should we give her more?’ ”
Vidmar said that strong tendency was unexpected. “It surprised everybody how much emphasis there was on the plaintiff’s insurance,” he said. “In effect, they’re putting the plaintiff on trial.”
Another spin-off of the research was a look at the surprisingly sharp observations of some jurors during cases. One juror noticed that a plaintiff, who claimed to be limping as a result of an injury, seemed to be walking fine in other parts of the courthouse. In other words, jurors are keeping a close eye on those who claim to be injured, and that could prove instructional to lawyers on both sides of cases.
“There is so much folklore out there that juries are plaintiff-oriented and anti-defendant and just give away money,” Vidmar said. “To the contrary, they’re almost like accountants in how they examine claims of injury and pain and suffering. The images we have of juries are distorted.”
Vidmar and Diamond and their research assistants are now studying the videotapes to answer questions about how juries evaluate expert evidence and how they determine damages.