by Claudine A. Cloutier
Congratulations to the attorneys and to the plaintiffs who were just awarded a 63 million dollar verdict in a case against Johnson & Johnson. The plaintiff suffered horrific and permanent injuries, requiring 16 surgeries and resulting in over a million dollars in medical bills. The result is a victory, not only for the litigants, but for consumers generally.
Unfortunately, the publicity that the verdict will rightfully receive, may skew the public’s perception of what usually happens in jury trials in Massachusetts. In 2001, Massachusetts Lawyers Weekly published Superior Court Judge Patrick Brady’s article and statistics showing that plaintiffs had won only slightly more that 10% of the trials that he had tracked. See 29 M.L.W. 2103 (May 21, 2001). Judge Brady’s tracking was only wins and losses. It did not track the size of the jury verdicts versus offers of settlement that had been made before trial. As many practitioners have experienced, a jury verdict that is a “win” can be lower than the last amount offered just as easily as it can be much larger than the last offer.
What is important to remember about a jury verdict, whether it be an unexpected “not guilty” in a criminal trial, a large award, or a defense verdict in a civil trial, is that presumably rational members of the community that have sat through the evidence day in and day out without the spin of the summary news reports or the additional inadmissible speculations and rumors, have somehow come to their conclusion, hopefully through serious deliberation. Some deference should be given to the result they’ve reached no matter how news reports have convinced each of us that we would have reached a different verdict.
On the other hand, perhaps occassionally jurors have, for some reason, gone astray. Who knows what dynamics may unfold during deliberations?
In Massachusetts, lawyers are not allowed to interview jurors post-verdict. This has made it very difficult for the trial bar to identify what, if any, problems exist with standard jury instructions. Do the jurors understand them? In a world of constant sound-bites, are they too lengthy? Jurors are usually told to ignore considerations of insurance? Do they? Should they be told about liens on any award to the plaintiff?
While no one wants jurors who have just lived through the inconvenience of a trial to be bombarded by the litigating attorneys, many states have some limited ways in which lawyers may reach out to jurors post-verdict. It is time Massachusetts consider changing its policy regarding post-trial juror contact. Perhaps the jury system and our means of instructing the jury are working perfectly-well. Unfortunately, if they are not, our current policy provides little chance to identify, diagnose, and fix any problems that do exist.