Juries, Hindsight, and Punitive Damages Awards: Reply to Richard Lempert

article published in law reviewRichard Lempert, a Professor of Law and Sociology at the University of Michigan criticized our recent article on judge and jury performance of a punitive damage judgment task, calling it a "failure of a social science case for change." Professor Lempert's depiction of our research is confusing and incorrect. However, because we believe a reading of only the Lempert critique can lead to a substantial misunderstanding of our research and its implications, we have written a reply

What Juries Can\u27t Do Well: The Jury\u27s Performance as a Risk Manager

Can juries handle complex cases? One way to frame this question in behavioral science terms is to ask: What tasks can juries perform well and what tasks will they perform poorly? Our basic precept is that the legal system should ask juries to perform tasks that they are good at performing and should not require juries to carry out tasks that they cannot perform well. A second guiding theme in our approach to the issue of jury competency is that the most relevant, most useful analyses of jury performance are based on empirical observations and data, not on rational analyses of hypothetical ideal situations... Our assumption is that it is reasonable to conceive of some jury decisions as serving the function of controlling risky behavior. Thus, for example, when a jury is asked to consider exemplary or punitive damages to punish and deter members of society from engaging in conduct that is in reckless disregard of the risks to others, we view the judgment as involving social risk management. Thus we ask: Can the jury perform in a manner so that it serves as an effective societal risk manager? To avoid any pretense of suspense, we believe that this is an extremely difficult function that is often not performed effectively even by the best informed experts. The jury is ill-informed and poorly equipped to perform this function. In our view, effective risk identification and management often requires the application of technical, statistical, and scientific analytic tools that cannot be effectively communicated to the unschooled layperson through expert testimony in adversarial procedures