Trial by jury or judge: Transcending empiricism.

Clermont, K. M., & Eisenberg, T. (1992). Trial by jury or judge: Transcending empiricism. Cornell Law Review, 77, 1124-1177.

Pity the civil jury, seen by some as the sickest organ of a sick system. Yet the jury has always been controversial. One might suppose that, with so much at stake for so long, we would all know a lot about the ways juries differ from judges in their behavior. In fact, we know remarkably little. This Article provides the first large-scale comparison of plaintiff win rates and recoveries in civil cases tried before juries and judges. In two of the most controversial areas of modern tort law–product liability and medical malpractice–the win rates substantially differ from other cases’ win rates and in a surprising way. Plaintiffs in these two areas prevail at trial at a much higher rate before judges than they do before juries. Furthermore, in several categories of personal-injury liability, the mean recovery in judge trials is higher than the mean recovery in jury trials. This Article’s goal is to explore how and why these win rates and recoveries differ.
Part I sketches stereotypical and scholarly impressions of judge and jury trial outcomes. Part II tests these impressions by using data on trial outcomes in judge and jury trials for major areas of tort and contract law. Part III seeks to explain the unpredicted patterns of the data by taking into account the size of awards and local factors. This unsuccessful effort leads us to consider the role of misperception and the settlement process as sources of the observed results. Part IV contrasts perceptions of judge/jury behavior with the limited empirical evidence available, finding little support for the widespread perception that juries are biased or incompetent. Part V combines the realities of judge/jury behavior with the litigants’ settlement behavior to formulate our explanation of the data.

Success rates in jury trials lower than success rates in bench trials for most case types.