Lawsuit Reform

Juries and Groupthink: Moderating the Threat to Reasonable Lawsuits

Social psychologists have been studying the effects of groupthink for decades. Group discussion tends to lead to more extreme opinions. Considered in the dynamic of jury deliberations, the results can be disheartening. But what if discussions among diverse groups of individuals with a variety of perspectives beget moderation? Enhancing the diversity of juries may moderate lawsuit awards in a reasonable manner without using strict lawsuit award caps.

Cass Sunstein, author of the libertarian paternalist book Nudge, examined the various studies that have considered group polarization in the context of jury deliberations in his 2007 article, Group Polarization and 12 Angry Men. The classic Henry Fonda film tells the story of one juror who manages to flip the minds of his 11 co-jurors, a phenomenon not often seen on juries. The critical mass of studies has found that deliberating juries typically end up adopting a more extreme position still in line with their pre-deliberation tendencies, much like studies examining individuals debating political positions tend to become more extreme as they interact with like-minded individuals.

There is also a body of research which shows this tendency shifts when debaters are faced with divided company in deliberations. As Bill Bishop put it in his political social psychology book, The Big Sort, “mixed company moderates, like-minded company polarizes.” Bishop’s book is an interesting read about the political implications of people geographically sorting themselves into neighborhoods of like-minded people, particularly in that opinions become more extreme. If this phenomenon is true within neighborhoods, it is plausible to have implications in jury deliberations.

A 1973 study at Emory University showed that judges on a panel are more likely to issue more extreme decisions when they are surrounded by like-minded judges than when their fellow judges have opposite political affiliations. This “group-induced choice shift” occurs even here, where the participants are arguably professionally trained to be objective.  The study suggests it is human nature to strengthen one’s opinions when surrounded only by arguments that support their view. Similarly, people tend to moderate their opinions when confronted by opposing arguments.

In the context of jury deliberations, diversity of background and perspective may in fact beget more reasonable, moderate lawsuit awards. The ALEC Jury Patriotism Act strives to make jury service less burdensome in an effort to encourage wide participation from every subsect of a community. The legislation reimburses jurors for lost wages so those who might otherwise risk financial harm can serve jury duty. For example, hourly wage earners and small business owners alike are more likely to participate because of this. The bill allows any potential juror to reschedule service for any reason rather than grant wide exceptions by profession to avoid complete demographic gaps. Potential jurors face only a single day being considered to serve on a jury rather than lose multiple days of employment. The inherent diversification of the jury pool promises to lead to diversified juries and moderated lawsuit awards.

Learn more from Arizona, the pioneer of jury diversity reform, and what other states can do to improve juror diversity on the new ALEC website, State Lawsuit Reform.


In Depth: Lawsuit Reform

State legal systems and the liability they exert on businesses and individuals are a disincentive to bad behavior and allow fair players to succeed in the marketplace. When lawsuits inappropriately punish good actors, resources are sucked out of the business economy, away from research & development and job creation. Lawsuit …

+ Lawsuit Reform In Depth