Corporate America, defense lawyer associations, business trade groups, insurance companies, and politically conservative ideologues decry jurors who they claim are more interested in using the court system for income redistribution rather than for meting out justice — the proverbial runaway juries.
What about juries that run in the opposite direction? Ever notice that there simply are never headlines about civil plaintiffs with meritorious cases who get “zeroed” or others end up hammered by juries?
Do you think that’s because it never happens?
It happens. In fact, it happens a lot. But the key ingredients for “news” stories (“if it bleeds, it leads,” sex, tragicomedy, or boatloads of money) are not there. And the special interest groups who might want to shed light on such cases as a pernicious flipside to the typical “runaway jury” criticism of our justice system (that is, injured people or the lawyers that represent them) are either not organized (the injured plaintiffs) or are not particularly interested in drawing attention to lawsuits they lost (the plaintiffs’ lawyers).
This brings us to Mr. William Nichols, a 30-year railroad worker who was injured on the job and who brought a lawsuit under the FELA (Federal Employment Liability Act). The FELA is famous for being a “plaintiff friendly” statute for U.S. railroad workers. The statute is “plaintiff friendly” but Mr. Nichols’ jury was not particularly friendly to him…
Essentially, Mr. Nichols’ case was that he was injured from having to lift heavy things without adequate help while working for the railroad. He asked his employer for help but, sometimes, Mr. Nichols testified, the employer was unable to give assistance so Mr. Nichols did some too-hard work on his own and was injured.
But the railroad argued that that this was Mr. Nichols’ own fault — that he was told to wait until he had help before undertaking the heavy-lifting and he disobeyed the railroad’s instruction and so he was responsible for his injuries.
You and I were not at the trial, of course, and we did not hear the testimony or see the evidence. Maybe the jury got it right. We cannot say that this was an example of a “reverse runaway jury.” (Note, however, that Hennepin County District Court Judge Thomas Fraser thought the jury got it wrong. He granted a directed verdict for Plaintiff, which the Court of Appeals reversed.)
Hypothetically, imagine a work-place culture where workers are under significant time pressures, where resources are stretched thin, where “asking for help” is not particularly encouraged nor appreciated, where, in fact, there are strong pressures to “man up” and get stuff done asap — that is, imagine a scenario where the railroad’s defense in Mr. Nichols’ case would have been unrealistic and weak. If that were the case here, do you think Mr. Nichols’ loss would get any attention at all from any media? In such cases, there is no outcry. The only way this kind of all-too-common situation gets mass media attention is when the problem is extreme, of epidemic proportion, that is, where class-actions and multi-million dollar risk come into the picture. Then society might notice.
Actually, we all make almost all of our decisions based on incomplete information all the time. Worse, not only is our information incomplete, it often suffers from pervasive and systemic bias. The incomplete information on which we all rely is not a random subset of all available data. It is a non-random and skewed subset. This is why diversity of voices and experience is so critical in our society, our schools, our work-places, our media and, of course, our courts. We will always aim for fairness and justice but it is and always will be a relentless struggle against sometimes powerful cross-currents of selection and distortion.