Krauss on Jury Bias as a Matter of Law
A new essay by Professor Michael Krauss looks at an Alabama Supreme Court case in which an ethical issue arose concerning a commonly held belief in jury bias.
"The issue, in a nutshell, was the following: if a plaintiff's attorney sues a human being, but negligently fails to sue a corporation that would have been held jointly and severally liable with that individual, and if as a direct result of this failure the plaintiff receives less money than he otherwise would have received, is the plaintiff's attorney liable (for malpractice) for the difference?" writes Krauss.
A majority of the court held that such bias may not be considered as a matter of law, precluding recovery against the negligent law firm.
The Emperor's Clothes: Should jury bias against corporations receive legal recognition? PointofLaw.com, June 5, 2013. By Michael Krauss.
"Every plaintiff's and every defendant's attorney know that, for any given alleged tort, damages determined by a jury are likely to be higher, ceteris paribus, if the defendant is a corporation than if the defendant is a human person. [There are lots of scholarly confirmations of this jury bias: see, for example, Hammitt, Carroll & Relies, Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751 (1985).] This is in no small part because compensatory damages include 'pain and suffering', which have no explicit market evaluation, thus allowing for much subjective leeway against juries, who may well conclude that a 'deep-pocketed' corporation will not itself feel 'pain' by having to compensate a plaintiff more fully."