Summary Jury Trial

Definition

Ten potential jurors are present for a brief voir dire. Each side is permitted two challenges so that the case is heard by a 6-person jury. No witnesses are present. The parties must be ready for trial with a trial brief and proposed instructions. The clients must be present to see the effect of their case on real jurors. Counsel summarizes testimony that would be anticipated and shows exhibits to the jury. Each side has one hour to present its case. After simple instructions, the jury renders an advisory verdict that can be either a consensus or the individual opinions of liability and damages.

Summary jury trials are useful when opposing attorneys do not agree about the outcome; a summary jury trial might provide enough indication of the outcome to facilitate a settlement. Rule 16 of the Federal Rules of Civil Procedure concerning pre-trial conferences allows use of a summary jury trial to facilitate a settlement.

Summary juries are cost-effective and provide an excellent opportunity for the lawyers to conduct post-trial interviews of jurors who have used FactLogic.

The attorneys can use FactLogic to organize, document, and present their case. Each juror can use FactLogic in the following ways:

• Each juror can use FactLogic to determine the probability of liability from the independent facts. If the probability of liability exceeds the preponderance of evidence, his decision is For the Plaintiff. If the required number of jurors concurs, the verdict is For the Plaintiff.
• If the verdict is For the Plaintiff, the jury could award actual damages that might be reduced due to comparative or contributory negligence on the part of the plaintiff.
• If the verdict is For the Plaintiff, and if punitive damages are sought, each juror decides two quantities:
  • Each juror decides the maximum punitive damages (i.e., the amount he feels is justified if there is total aggravation - regardless of the amount sought).
  • Each juror also uses FactLogic to determine the probability of aggravation from the independent aggravating and mitigating circumstances. Then the jury could determine punitive damages in one of the following two ways:
    • Each juror compares his probability of aggravation with his idea of a standard of proof to determine if punitive damages should be awarded. If the required majority concurs, the average maximum punitive damages could be awarded.
    • Each juror determines the product of his maximum punitive damages and his probability of aggravation. He could decide to award this amount.

If all jurors evaluate the case using FactLogic, they provide the number of fact finders necessary to conduct statistical analysis. Statistical analysis can provide an accurate decision in three ways:

Carefully Define the Probability of Liability. FactLogic defines the probability of liability by computing the average and computing an interval on both sides of the average within which one can be 95% confident that the true probability of liability exists.

Compare the Probability of Liability to the Preponderance of Evidence. FactLogic determines whether one can be 95% sure that the probability of liability exceeds the preponderance of evidence.

Compare the Probabilities of Liability of Two Defendants. FactLogic determines if the probability of liability for one defendant is greater, with 95% certainty, than the probability of liability for the other defendant.

1. Determine Liability

Each juror uses FactLogic to determine the probability of liability, and hence, the general verdict.

Example (Carefully Define the Probability of Liability and Compare the Probability of Liability to the Preponderance of Evidence). Six independent facts for a civil trial involving a dispute between Mark Balance and Roger Swanson are listed in the following table. The probabilities in that table are those of one juror that resulted in a probability of liability of 48.549%. The summary jury trial has six jurors, and each provided probabilities in a similar table. Attorneys for each side want an indication of the verdict from a trial:

• Carefully define the probability of liability.
• Compare this probability to the preponderance of evidence.

Solution (Carefully Define the Probability of Liability). The probabilities of liability from the other five jurors are 33.872%, 75.331%, 57.906%, 49.550%, and 74.219%. The average of the five probabilities of liability is 56.571%. Analysis shows that the attorneys can be 95% confident that the true probability of liability is between 39.688% and 73.454%.

Solution (Compare the Probability of Liability to the Preponderance of Evidence). Analysis shows that the attorneys can be 95% confident that the probability of liability exceeds the preponderance of evidence (i.e., 50%).

2. Determine Actual Damages

If the verdict is For the Plaintiff, actual damages are awarded to the plaintiff after reductions for either contributory or comparative damages.¹ FactLogic does not determine the percentage of negligence since the computation is trivial, and the requirements vary.

Example (Actual Damages). Mark Balance demonstrated that the actual damages to his car are $1,520. There is no contributory or comparative negligence in this case.

Solution (Actual Damages). Since the verdict is For the Plaintiff, the total actual damages of $1,520 are awarded to Mrs. Hornsby because no negligence on her part was found.

3. Determine Punitive Damages

If the verdict is For the Plaintiff, and if punitive damages are sought, each juror decides two quantities: He decides the maximum punitive damages (i.e., the amount he feels is justified if there is total aggravation - regardless of the amount sought). Each juror also uses FactLogic to determine the probability of aggravation from the independent aggravating and mitigating circumstances. Then the jury could determine punitive damages in one of the follow two ways:

• Each juror compares his probability of aggravation with his idea of a standard of proof to determine if punitive damages should be awarded. If the required majority concurs, the maximum punitive damages could be awarded.
• Each juror awards punitive damages that is the product of his maximum punitive damages and his probability of aggravation. The average of these damages could be awarded.

Example (Maximum Punitive Damages). Mark Balance is seeking $5,000 punitive damages against Roger Swanson. The maximum punitive damages are damages that would be awarded if the circumstances are totally aggravating. Determine the maximum punitive damages.

Solution (Maximum Punitive Damages). The six jurors agreed that the $5,000 is excessive. They believe the maximum punitive damages should be $4,000.

Example (Probability of Aggravation). There are three independent aggravating circumstances and no mitigating circumstances. The circumstances and the probabilities from one juror are listed in Table 2.

Solution (Probability of Aggravation). The six jurors evaluated the circumstances. FactLogic determined the probability of aggravation for one juror to be 40.960%. It also determined the average probability of aggravation to be 48.205%, and jurors can be 95% confident that the probability of aggravation is between 32.983% and 63.427%.

3.1 Determine the Punitive Damages Verdict

To determine whether to award punitive damages, each juror is instructed to decide a standard of proof and compare it to the probability of aggravation.

Example (Punitive Damages Verdict). The six jurors decided the following pairs of standards of proof and FactLogic determined the probabilities of aggravation: (80%, 52.524%), (75%, 51.994%), (85%, 48.082%), (85%, 62.742%), (80%, 48.115%), and (90%, 25.773%). Determine the punitive damages verdict.

Solution (Punitive Damages Verdict). All six jurors decided that their probabilities of aggravation did not exceed their standards of proof. The punitive damages verdict is For the Defendant so punitive damages are not awarded.

3.2 Reduce the Maximum Punitive Damages by the
Probability of Aggravation

The maximum punitive damages are reduced by the average probability of aggravation.

Example (Punitive Damages). The six jurors agree that the maximum punitive damages is $4,000. The average probability of aggravation is 48.205%. Determine the punitive damages.

Solution (Punitive Damages). The punitive damages are

0.48205 x $4,000 = $1,928.

Summary

The attorneys can use FactLogic to organize, document, and present their case. Each juror can use FactLogic in the following way:

• Each juror can use FactLogic to determine the probability of liability from the independent facts. If it is greater than the preponderance of evidence, his decision is For the Plaintiff. If the required number of jurors concurs, the verdict is For the Plaintiff.
• If the verdict is For the Plaintiff, the jury would award actual damages that might be reduced due to comparative or contributory negligence.
• If the verdict is For the Plaintiff, and if punitive damages are sought, each juror decides two quantities:
  • Each juror decides the maximum punitive damages (i.e., the amount he feels is justified if there is total aggravation - regardless of the amount sought).
  • Each juror also uses FactLogic to determine the probability of aggravation from the independent aggravating and mitigating circumstances.
    
    

  Then the jury could determine punitive damages in one of the follow two ways:

  • Each juror compares his probability of aggravation to his idea of a standard of proof to determine if punitive damages should be awarded. If the required majority concurs, the average maximum punitive damages could be awarded.
• Each juror determines the product of his maximum punitive damages and his probability of aggravation. He could decide to award this value

Footnotes

¹A special verdict is a finding of the facts of a case, often of the percentages of fault in personal injury and wrongful death cases. Percentages of fault have increased in importance with the advent of the apportionment rule among tortfeasors and the rule of comparative negligence. Never have the percentages of fault been more accurately determinable than with FactLogic!