Yet more about the first Vioxx verdict, and the law professors who hate it

I feel pretty much about this attack on the jury system by a law professor as I did about this one and this one, even though they're all from law professors I like and respect. As I wrote in the comments on one of the latter two  posts (and wrote about more generally here and here), I sure wish some of these law professors would come try some jury cases with me before they start making these blanket indictments of the jury system. But failing that, it's nice when they open up their blog posts' comments and are willing to swap and consider contrasting views (as Profs. Bainbridge and Ribstein have done, to their great credit).

I sorta think it'd be useful if, when law professors are forming their opinions, they'd at least take into account what real trial judges and real trial lawyers (from both sides of the docket) have observed in their personal experience with jury abilities. With due respect, I don't think you can learn a whole lot in general about juries just from law review articles, other law professors, or the popular press.

Prof. Bernstein, for example, writes of "how obvious it is that complicated scientific evidence presented orally in an adversarial system will inevitably be beyond the comprehension of many lay jurors." Well,  I'm sorry, but it's not obvious to me. It's not obvious to most of the trial judges and trial lawyers I've worked with for the last 25 years either.

And I'm not sure about Prof. Bernstein's personal experience, but I've actually tried jury cases with complicated evidence, scientific and otherwise. For example, representing several different insurance companies on the defense side, I tried a series of jury trials in the early 1980s in which jurors were required to assess the development of both legitimate and quack cancer drugs. The medical and scientific evidence was at least as complicated as in the Vioxx litigation; some of the best cancer researchers in the world testified. I won (or settled on very favorable terms) way more than my share of those cases, and after the one big one that I lost, I certainly didn't whine about that jury, much less jurors in general, being stupid. That jury wasn't stupid; in fact, they could (and did) chat knowledgeably with me after the case about placebo effects, the differences between Phase II and III clinical trials, tumors growing so fast they'd outstripped their blood supply, FDA "new drug application" stages, and all sorts of other things that they'd learned about from the evidence. Rather, they responded to a superior strategy for framing the issues effectively that my opponent had come up with for a retrial after I'd won that same case with the first jury. I actually convinced both juries on the science, but the second one concluded that the case was really more about insurance company business practices, and they were quite arguably correct about that. Still stings, but I learned from it, as did my client.

In all those cases, and in every other case I've tried that involved complicated medical, scientific, engineering, or technical information — which actually has been a large majority of the total number of cases I've tried — I've known better than to try to present my complicated evidence just "orally." I don't know where Prof. Bernstein got that idea; perhaps he just misspoke. But we always have documentary evidence, and when that's too voluminous, we also have summaries of the documentary evidence. In high-stakes cases, lawyers on both sides have budgets for audio-visuals, graphics, models, computer simulations, and the like that university and medical school professors can only dream of having.

Indeed, both sides in these complicated cases often use the very same professors to explain things to the jury as the universities and medical schools use to explain these things to med students and junior scientists. Now, I'll grant you that the med students and junior scientists may have higher average pre-existing levels of education in their specific fields. But there are some compensating factors. All 12 jurors get to collaborate when they take their "tests," and they're always "open book" and typically without time limits. By the end of a complicated case, they may well have spent as many hours being "educated" about the key topics as an academic would; their knowledge may not be as broad, but it's often quite deep. And almost every jury I've ever seen has had at least a handful of college graduates in some field, and they not only help in the education and explanation process, they also tend to be opinion leaders who sway other jurors' votes.

And certainly when a juror makes a statement after a trial like "We didn't know what the heck they [i.e., the drug company's experts, when one goes back and looks at the original quote] were talking about," I know better than to jump to the conclusion that that was because the jury was stupid or lazy. I'd rule out the possibility first that the defense team and/or its witnesses didn't do as good a job of teaching and communicating and explaining as the plaintiff's team did.

Prof. Bernstein, with due and genuine respect: Turn on your comments function, but better yet, open your mind. It's funny how the juries I've dealt with seem to be more open-minded and receptive to actual evidence than some law professors seem to be.

(I'll repeat here, for those who don't follow any of these links, that I don't know whether the recent Vioxx verdict from Angleton was or wasn't just and correct. But nothing I've read or heard yet about that verdict persuades me that it's even a persuasive data point in any attack on the jury system, much less some sort of conclusive anecdotal proof.)