By Victor E. Schwartz, Mark A. Behrens, and Leah Lorber

A recently released study of state court trials claims that judges award punitive damages about as often as juries do - and generally in the same proportions.(1) The study, which is scheduled to be published in March 2002 in the Cornell Law Review, challenges widespread beliefs that jurors are more likely to award punitive damages than judges.

The study's findings will undoubtedly be touted by opponents of punitive damages reform. Indeed, the New York Times quoted one of the study's authors as saying that efforts to limit punitive awards by juries "may be a solution in search of a problem."(2)

But the study's results are questionable. The authors did not focus on the types of cases that give rise to problems with excessive punitive damages awards. Nor did they study cases from jurisdictions notorious for excessive awards such as Mississippi, where punitive damages together totaling more than $2 billion have been awarded since 1995. (3) As a result, the study's findings do not provide an accurate picture of judge and jury behavior in this area. At most, the authors found "no substantial evidence that judges and juries differ in the rate at which they award punitive damages, or in the central relation between the size of punitive awards and compensatory awards." (4)

The study examined about 9,000 completed judge and jury trials ending in fiscal year 1995-96. (5) The cases came from a random sampling of state courts of general jurisdiction in 45 of the 75 most populous counties in the United States. (6) The information collected about each case included the general subject matter, locale, which party prevailed, the nature of the parties, and compensatory and punitive damages award levels.

The authors examined all of the completed trials in 36 of the jurisdictions studied and a random sample of completed trials from the nine jurisdictions. (7) Nearly half of the cases studied fell into just two categories - motor vehicle tort and premises liability cases (8)- and jurors heard the overwhelming majority of those cases. (9)

By using all completed trials in most of the jurisdictions studied and a random sampling from others, the study is likely to have substantially diluted the cases for which punitive damages are likely to be awarded - products liability and high-stakes commercial cases involving out-of-state corporate defendants. Instead, it is likely that much of the data on jury awards came mostly from cases like routine auto accident or slip and fall claims - in other words, run-of-the-mill legal actions that are highly unlikely to result in punitive damages awards at all, much less large ones. Unfortunately, this cannot be ascertained because the authors' data does not provide detailed information about the cases. (10)

Similarly, the authors failed to consider judge and jury practices in jurisdictions famous for excessive damages awards such as Jefferson County, Mississippi; Beaumont, Texas; or Madison County, Illinois - despite acknowledging that the data showed "substantial inter-county differences in punitive [damages] award rates." (11) The authors do state that in looking at how often judges and juries award punitive damages, "[s]tatistical analysis reveals that one cannot reject the hypothesis of no county-level effect in the relation between frequency of punitive damages awards and mode of trial." (12) This statement is misleading, as the authors' analysis did not take into account any differences in types of cases or other factors that might be important.

Moreover, the study data itself refutes the authors' claims. The authors state that "[I]n every traditional tort category in the data, plaintiffs prevailed at a higher rate in judge trials than in jury trials. Either judges are more sympathetic to plaintiffs than juries or plaintiffs route their weaker cases to juries, probably based on the belief that juries will be biased toward harmed plaintiffs. When that belief turns out to be a misperception, the observed pattern of win rates results." (13) But while data suggests that plaintiffs had a higher win rate in bench trials than in jury trials, the data also shows that in 13 of the 18 case categories, juries awarded punitive damages more often than judges did. (14)

Finally, the authors' methodology may raise some eyebrows. There are huge differences in the average and median compensatory and punitive damage awards, which indicates that a few extremely large or small awards may skew any attempts to compare awards rendered by judges and juries.(15) The authors analyze the relationship between punitive and compensatory awards in jury and bench trials, finding no judge-jury difference in that ratio. By focusing on the punitive-compensatory ratio, the authors avoid addressing the fact that jury awards are higher.

In short, the authors' conclusion that "our primary claim is a negative one - the absence of evidence that judges and juries behave substantively differently" (16) depends on how the data is analyzed. If the authors had focused on the types of cases that lead to excessive damages awards, and the jurisdictions where they occur, the results may have been far different.

1. See Theodore Eisenberg et al., Juries, Judges, and Punitive Damages: An Empirical Study, 87 Cornell L. Rev. - (forthcoming 2002) [hereinafter "Punitive Damages Study"].
   
2. William Glaberson, A Study's Verdict: Jury Awards Are Not Out of Control, N.Y. Times, August 6, 2001.
   
3. See Jerry Mitchell, Court: Tort reform possible, The Clarion Ledger, Aug. 22, 2001. Punitive Damages Study, at 1.
   
4. Id. at 3.
   
5. See id.
   
6. The data was obtained directly from the court clerks' offices by the Civil Trial Court Network, a project of the National Center for State Courts and the Bureau of Justice Statistics. See id.
   
7. The authors considered a random sample of cases in nine of the 45 jurisdictions studied, including Harris County, Texas, which includes Houston.
   
8. See id.
   
9. These categories accounted for 46 percent of the cases studied. See id. at 6, Table 1, Panel C. Other case categories were products liability; intentional tort; medical malpractice; professional malpractice; slander/libel; other negligence; fraud; seller plaintiff; buyer plaintiff; employment discrimination; other employment dispute; rental/lease agreement; tortious interference with contract; other contract; and other real property. See id.
   
10. Jurors heard 2,532 motor vehicle tort cases and judges heard 220. Jurors heard 1,159 premises liability cases and judges heard 129. See id. In fact, jurors heard the majority of all tort cases. The subject matter of the cases tried by judges and juries differed substantially. See id. at 6, Table 1, Panels B & C.
    
11. See id. at 22.
    
12. Id. at 2; see also id. at 36, Appendix Table 1 (identifying jurisdictions studied).
    
13. Id. at 8.
    
14. Id. at 5, n.20.
    
15. See id. at 6, Table 1, Panel C.
    
16. See id.