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
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
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.
- See Theodore Eisenberg et al., Juries, Judges,
and Punitive Damages: An Empirical Study, 87 Cornell L. Rev. -
(forthcoming 2002) [hereinafter "Punitive Damages Study"].
- William Glaberson, A Study's Verdict: Jury
Awards Are Not Out of Control, N.Y. Times, August 6, 2001.
- See Jerry Mitchell, Court: Tort reform possible,
The Clarion Ledger, Aug. 22, 2001. Punitive Damages Study, at
- Id. at 3.
- See id.
- 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.
- The authors considered a random sample of cases
in nine of the 45 jurisdictions studied, including Harris County,
Texas, which includes Houston.
- See id.
- 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.
- 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.
- See id. at 22.
- Id. at 2; see also id. at 36, Appendix Table
1 (identifying jurisdictions studied).
- Id. at 8.
- Id. at 5, n.20.
- See id. at 6, Table 1, Panel C.
- See id.