Friday, December 19, 2003

Capitalism & Law: Beware Jury Compassion

The Association of Trial Lawyers of America (ATLA) publishes a guide on how to win tort cases. Included is a chapter written by lawyer David Wenner, who advises his brethren to weed-out jurors who believe in “personal responsibility”. Wenner argues that plaintiff’s attorneys should eliminate highly religious, “family values” people from juries, but his arguments also would exclude Objectivists and rationalists as well:
"It is helpful to divide the jurors into two groups: the personal responsibility group and compassion-altruistic group," Wenner wrote. "Jurors who are extreme on the personal responsibility bias, or who have a high need for personal responsibility, will strongly favor the defendant. In contrast, jurors who are extreme on the compassionate-altruistic bias, or who have a high need for compassion, will strongly favor the plaintiff."

Based on his research, jurors who believe in moral absolutes tend to have what Wenner called a "personal responsibility bias.

"The personal responsibility juror tends to see the world with bright line rules on how people should act," Wenner wrote. "People should be self-reliant, responsible, and self-disciplined. When people act irresponsibly and are not self-disciplined, there are consequences. People must be accountable for their conduct."

Such jurors, Wenner believes, are likely to question whether the plaintiff could have done something to avoid the injury they suffered.

"The motto of these jurors is that if a person is committed to personal responsibility, then he or she must first accept blame before blaming others. That means playing the blame game is unacceptable if the plaintiff was in the best position to avoid the injury," Wenner wrote. "If the plaintiff has not been completely responsible, do not expect the personal responsibility jurors to find for the plaintiff, even though the plaintiff may have been only partially at fault."
This may sound offensive to many of us, but Wenner is right on the money. Juries that find for plaintiffs and award unreasonable damages place altruism and compassion above reason and personal responsibility. And while Wenner is trying to guide plaintiff’s lawyers to victory, his comments provide a strong argument for eliminating the ability of lawyers to control jury selection. The judge, not the counsel, should exercise that responsibility. In fact, I’m starting to think civil juries should be abolished altogether.

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