In 1992, prisoners won 52 percent of the civil rights cases decided by jury verdicts, down from 63 percent in 1989, according to Jury Verdict Research, a legal publishing firm in Horsham, Pennsylvania. They are the only ones to compile such data nationally. The 1993 statistics are not yet available, but preliminary figures suggest the downward trend continued. The firm's research also indicates that despite the occasional colossal award that garners publicity and revives claims that juries have run amok, the size of awards has leveled off.
Theories abound as to why the shift has occurred, but the most widely accepted seems to be that criticism leveled at juries and their perceived largesse by two of the most affluent defendants--the Justice Department and the prison industry insurance companies--has sunk in.
Brian Shenker, Editorial Director of Jury Verdict Research, said, "There's been such a campaign by the prison industry, by people like Janet Reno, saying these big awards are killing our society. People see this in the media, and when they get on juries they think `I'm not going to contribute to this!'"
James F. McHugh, an associate justice of the Massachusetts Superior Court, said, "There's less of a sense among juries that it's other people's money we're dealing with." Jurors, he added, "...are aware that we all pay these costs" in the form of increased liability insurance premiums.
The acid test of this attitude, lawyers and judges say, is in prisoners' rights cases, in which individual plaintiffs are often pitted against corrections defendants and, almost invariably, against the defendants' high state attorneys. By contrast, practitioners say, jurors' attitudes have not changed in cases of civil rights and contract disputes.
Some lawyers, like Michael Wallace, president of the Pennsylvania Trial Lawyers Association, say they have seen no evidence of greater jury skepticism regarding prisoners' claims. "Jurors still do what's right." he said. "I think the prison industry message is being filtered through some very observant eyes."
But the numbers tell a different tale. From 1961 to 1991, a prisoner's chance of prevailing at trial in civil rights suits changed remarkably little, never rising above 63 percent or falling below 57 percent in any year. Then came the drop to 52 percent in 1992.
"I've seen a kind of conservatism among jurors, and you get defendants verdicts that you might not have a few years ago." said Justice Cappy Marshall of New York State Supreme Court in Manhattan. "Jurors say they're very concerned about the high [dollar value] verdicts you read about in the newspaper--though they don't ever hear about the verdicts for the defendants-- and they're very concerned."
Stephen H. Mackauf, Chairman of Pennsylvania Legal Rights Committee of the Philadelphia Lawyers Guild, said, "Now when I question jurors, I find they come in with negative opinions about lawsuits, where they didn't used to." Mr. Mackauf and other trial lawyers said the change is most noticeable among middle class jurors, many of whom are working professionals paying liability insurance premiums, and perceive rising prison system costs and jury verdicts.
Michael Mone, president of the Massachusetts Bar Association, said that prisoners aren't the cause, but television advertisements for personal injury and civil rights lawyers may have enhanced the trend. "I think jurors are offended by some of that advertising," he said. "It makes them tend to look askance at the cases that are in front of them."
Jury Verdict Research's figures show an especially stark shift in juries' sympathies in cases of premise liability (including "slip and fall" cases) and prison assault cases, which in recent years have accounted for 25 percent of all civil rights trials. Several trial lawyers also suggested that people who were hit hard by the recession might have become less sympathetic to prisoner civil rights plaintiffs. But people in the legal profession agree that the shift in jury sentiments is not the result of any increase in frivolous lawsuits.
. Marc Whitehead, a Philadelphia trial lawyer who was co-chairman of a Brookings Institution conference in 1992 on the future of the civil jury, said the sense among lawyers "is that litigation is actually down overall," and added, "People find it's too expensive, slow and difficult."
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