More on the Merck verdict

The W$J story on jury deliberations in the Merck case has some nice tidbits. Plaintiff’s lawyer Lanier's jury adviser advised him to stress that proponderance of the evidence meant the jury needed only to be “51% sure Vioxx was a cause of Mr. Ernst's death.” 

The jury adviser also advised Lanier, "this jury believes they're going to get on Oprah. They only get on Oprah if they vote for the plaintiff."

Lanier accordingly told the jury, "I can't promise Oprah," but "there are going to be a lot of people who'll want to know how you had the courage to do it."

In the jury room, though one juror was skeptical about cause because “people die of arrhythmias every day,” several other jurors said they “didn't think Vioxx was the cause of Mr. Ernst's death, but they believed it was a cause. If so, that was enough to find for the plaintiff, according to the judge's instructions.”

The jury agreed on cause in about an hour.

I repeat, is this really the best we can do?

Comments

[Beldar]

> Plaintiff’s lawyer Lanier's
> jury adviser advised him to
> stress that proponderance of
> the evidence meant the jury
> needed only to be "51% sure
> Vioxx was a cause of Mr. Ernst's
> death."

No offense intended, but: Duh!

I've been on one side or the other of several dozen personal injury trials, and watched many others. I don't believe I've ever seen a plaintiff's lawyer who didn't stress the difference between the "preponderance of the evidence" standard of a civil trial and the "beyond a reasonable doubt" standard in a criminal case. Jurors are always familiar with the latter; they're unfamiliar with the former a surprising amount of the time.

The metaphor almost always used by plaintiffs' counsel -- almost always beginning in jury selection, and then again in closing argument -- is the "scales of justice" needing only to be tipped their way by so much as a feather's weight more evidence than the defendant has put into their pan on the other side of the scale. The reason this metaphor is almost always used is that it ties into an archetypical image that resonates broadly, buttressed by man-on-the-street physics. But it's unobjectionable either as a matter of law or of physics; the metaphor does fit the legal standard, and even a feather can tip the scales out of balance.

Defense lawyers likewise always argue "burden of proof" -- multiple variations on the general theme that someone should have to "prove" their claims if they come to court asking the government to pluck cash out of one party's pocket and put it in the other. And they typically stress not the "greater weight and degree" component of the standard definition of "preponderance of the evidence," but the "credib[ility]" component.

So I'm surprised that you're surprised, Professor, by this particular anecdote in the WJS' story.

[Larry Ribstein]

When did I say or imply that I was surprised? My whole point is that this case was characteristic, and to show how the 51% standard can lead to what I believe was a bad result because of how the plaintiff's attorney led the jury to resolve its doubt.

By the way, I was a trial attorney before I went into teaching, and I have taught evidence, so I think I know at least most of the secret handshakes and wizardly magic that trial lawyer commenters on this blog sometimes seem to assume I don't know.

[Beldar]

If indeed your point was that Lanier's standard of proof argument was characteristic, instead of noteworthy as some sort of deviation from the norm, I stand corrected and astonished.

You're proposing that we throw out the "preponderance of the evidence" standard altogether, then? Okay, if so, then YOU may indeed not be surprised, but I'm doubly so.

Tell me, when my neighbor runs over my child in the driveway, do I need to get past, say, a 75 percent threshhold in proving his negligence? When my cousin wants her fair share of her and her spouse's community property when she sues him for divorce, how close does she have to get to "beyond a reasonable doubt" in order to prove up her fair share? Because surely you're not proposing a fundamental change, a permanent thumb on the scale of justice, ONLY to benefit drug companies, are you?

You're not suggesting a fair fight. You're proposing a permanent tilt of the playing field, a built-in handicap in favor of civil defendants. That would be an enormous structural change, almost a fundamental redefinition of our common-law historical concept of "justice."

I believe such an across-the-board proposal goes considerably beyond what even pretty aggressive tort reformers have proposed. And with due respect, I have a hard time, personally, thinking of a worse idea.

[Beldar]

If indeed your point was that Lanier's standard of proof argument was characteristic, instead of noteworthy as some sort of deviation from the norm, I stand corrected and astonished.

You're proposing that we throw out the "preponderance of the evidence" standard altogether, then? Okay, if so, then YOU may indeed not be surprised, but I'm doubly so.

Tell me, when my neighbor runs over my child in the driveway, do I need to get past, say, a 75 percent threshhold in proving his negligence? When my cousin wants her fair share of her and her spouse's community property when she sues him for divorce, how close does she have to get to "beyond a reasonable doubt" in order to prove up her fair share? Because surely you're not proposing a fundamental change, a permanent thumb on the scale of justice, ONLY to benefit drug companies, are you?

You're not suggesting a fair fight. You're proposing a permanent tilt of the playing field, a built-in handicap in favor of civil defendants. That would be an enormous structural change, almost a fundamental redefinition of our common-law historical concept of "justice."

I believe such an across-the-board proposal goes considerably beyond what even pretty aggressive tort reformers have proposed. And with due respect, I have a hard time, personally, thinking of a worse idea.

[Beldar]

Apologies for the double-post (latency problems). Please feel free to delete one.

One last point, re standards of proof: When the standard is set to any point above "preponderance of the evidence," the result, by definition, is the dismissal of some number of claims which are (merely) more probably than not valid.

When we're protecting individual rights in the criminal justice context, we deem it better that some who are more probably than not guilty go free, simply to increase the likelihood that all who are convicted are indeed guilty; but that is indeed a permanent thumb on the scales of justice that make justice less likely in any given case. That particular thumb always presses against the government, and we deem that not only acceptable, but a good thing.

Among civil litigants, however, it's much harder to justify tilting the playing field permanently and in advance to favor one class of citizens over another. And I don't think people will, or should, stand for it.