When Dr Paul Hogan got a court award a couple of weeks ago of $2.9 million for being belted over the hand with a strap, the cry went up that Australia was going the way of the US.
Well, I was in the US at the time, otherwise I would have hopped on my hobby horse (the madness of juries) last week.
In some ways we are going the way the of the US. Meanwhile, some legislatures in the US have had enough of overblown awards to plaintiffs and are gong the other way.
Since the strapping case, the letters and talk back have been filled with ex-students talking about how beatings made men of them or how corporal punishment leaves psychological scars forever. Of equal import, however, is the question of whether juries should be allowed near the courts of justice.
Te jury had obviously seen too many episodes of LA Law and the The Practise (yes Americans spell it like that). In these programs, over-acting lawyers play it up to juries to give humungous awards to plaintiffs to “”send messages” and to respond to “”emotional” needs and so on, irrespective of the justice of the case or the fall-out for the public who have to pay, usually in the form of higher insurance policies or higher prices.
Juries are supposed to bring commonsense and a community view to legal outcomes. Yet here is a case where everyone you talk so says was over the top and at odds with everyone – no commonsense and no community view. The jury awarded Dr Hogan $1.5 million in future economic loss, among other damages, despite the fact that since his strapping he managed to get through a PhD which would have increased his future earning capacity. The jury – as is so often the case – was out of its depth.
In the criminal sphere, juries are required only to answer the question guilty of not guilty. Once the jury has spoken, its word is regarded a almost sacrosanct – not to be questioned.
In a civil case, such as the strapping case, the jury goes one step beyond black and white. It must also calculate damages. In that calculation, you can at lease get a glimpse of the weakness in a jury’s reasoning process. In this case, the result indicates that there was no reasoning process, but rather an emotional process. Who knows the nature of that emotional process. Perhaps some of the jury thought corporal punishment is wrong, a worthwhile viewpoint. Perhaps some thought religious schools are no conducive to good education. Or perhaps the jury felt sorry for a poor boy being bullied by the teacher. However, the important point is that we do not know and will never know. All we know is that a jury returned a monetary level of damages which is bizarrely high because it bears no comparison with the damage done or the damages awarded in other personal injuries cases.
In a civil case, the madness of the verdict is made more manifest because the jury has to settle upon a dollar amount which is more easily scrutinised than the simple guilty or not guilt verdict in a criminal case. But if juries behave this way in civil cases, who knows what unreasoning prejudice and emotion is hidden behind the simple guilty-not guilty verdicts in criminal cases. Sadly we can never find out because all sorts of silly laws make it impossible to publish information about what goes through jurors’ minds.
The folly of jury verdict in case is exposed by balancing the damages with the injury. Hands up (or out) everyone who would happily receive 12 blows of a leather strap on their hand for $2.9 million. There would be a queue miles long, including those who quite rightly detest corporal punishment.
Jury decisions are offensive to virtually every principle of justice.
Justice should be done in the open – jury deliberations are done in secret.
Justice demands reasons for decisions so they can be challenged or appeal or, if sound, contribute to the confidence people have in the justice system. Juries do not have to give reasons.
Good decision-making requires that the people making decisions are competent to make them – that they know how to absorb the facts, apply the facts to the law or the rules, put emotion aside and have capacity to draw a conclusion. Usually, decision makers are trained and tested before they are put into decision-making positions. Either they have formal qualifications, or they convince an employment panel that through their experience they are capable of making decisions. Juries, however, are drawn from a hat. Moreover, any professional or anyone running a business can escape jury duty easily, leaving the less savvy behind. Worse, people over 65 – the very people with a bit of wisdom – are also excluded.
Pro-jury propaganda tells us that jury represent the people who put a bit of commonsense into the system as a bulwark against legalism. It is twaddle of course. Any pollster will tell you that four (civil) or 12 (criminal) jurors drawn out of a hat will not be a representative sample.
Fortunately, we do not have the US constitutional provision which gives a right to trial by jury for nearly all civil matters. Nonetheless we now have US style contingency cases where plaintiffs can run cases on spec, only paying their lawyers if they are successful. We also have the victim-blame society.
I saw some evidence of a backlash while skiing in Vail (more of that in the travel pages later). At the bottom of every lift were signs saying that under Colorado law you acknowledge that skiing has inherent dangers caused by snow conditions, equipment failure, skiing beyond you ability and so on. If you use these lifts you accept those risks and you cannot sue the ski-field operator.
Fantastic. Make people responsible for their own actions, even in the land of LA Law and The Practise where slick lawyers can pander to the emotions of unqualified jurors to pay big money to undeserving plaintiffs.
The only thing that saves Australia from the excesses of the US is that we don’t have many civil jury trails. The strapping case was the odd-ball exception that proves the point.
Juries are not a bulwark against injustice, they are often the cause of it.