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    Holding Court with Joan Biskupic

    Post Supreme Court reporter Joan Biskupic. (The Post)

    Related Links
    Activist Jurors Help Carve Out New Law (Aug. 30, 1999)

    Poll: Washington Post Jury Study

    In Jury Rooms, A Form of Civil Protest Grows (Feb. 8, 1999)

    Live Online: Holding Court

    Supreme Court Special Report
    Court stories from The Post and the AP.

    Friday, September 3, 1999

    For years, advocacy groups have campaigned for years against the tobacco and firearms industries, using the courts as a weapon. Now juries are listening. As industries find themselves the target of lawsuits, jurors increasingly have taken up the cause of "the little guy," translating outrage against big companies into large awards for plaintiffs. This week, in addition to the usual questions about the nine justices, "Holding Court" takes a look at the national trend of juries assessing harsh damages against corporate defendants.

    Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.

    Biskupic answers your questions on the Supreme Court and legal affairs Fridays at 10 a.m. EDT. Today's transcript follows:

    Washington, D.C.: I enjoy your reporting and hardly miss an article. However, your recent story on "activist juries" infuriated me, specifically when you discuss how juries are not "equipped" to deal with questions of policy.

    You wrote:

    Unlike legislators, who typically hold hearings on a subject and seek out information from a multitude of competing interests, jurors are told only what the two sides of a case want them to know."

    The most polite word I can use to describe that passage is "highfalutin." You talk about how legislators are so balanced and careful in their deliberations on guns and tobacco, when we all know that those two lobbies have innumerable legislators in their pocket, regardless of how many ostensibly impartial hearings they hold on the matter.

    Your article smacked of the haughty attitude that jurors really aren't that smart, and should leave the thinking to their oh-so-wiser legislators. Well, I for one am quite comfortable with so-called "activist" juries. Otherwise, why bother with juries of peers in the first place, when we could leave the real thinking to judges, who must be so much smarter than the schlubs who populate the jury box?

    Joan Biskupic: I love questions like this! First, let me welcome everyone. Today, "Holding Court" is taking questions on jurors' attitudes toward unpopular industries. For decades juries refused to find cigarette companies responsible for smokers' health problems. But since last summer, jurors have found against tobacco in four big cases. The first jury verdict against gun makers for the illegal use of the weapons also was returned. So, we set out to talk to jurors to see what was going on, and a story on the topic ran last Monday.

    Now for your question: I indeed wrote that paragraph about the differences between what juries hear and what legislatures hear. But, it followed a quote from a corporate defense lawyer, who said "juries aren't equipped." Her words, not mine. And indeed, I've found that in talking with dozens of jurors during the past year, while they often struggle with cases, they take a very intelligent approach to the dilemmas before them. Also, I think all the jurors quoted in this week's story sounded very smart about their rationale, despite being determined to sock it to the industry. Can you explain the rules for jurors in discussing cases? What are the rules on secrecy? It's OK for jurors to talk about the cases with reporters, etc., after they've been polled? Have you found that jurors are reluctant to talk about their experiences and motivations?

    Joan Biskupic: Jurors are forbidden from discussing a case while it's going on. (So, for example, with the continuing Miami class-action tobacco litigation, I didn't interview any of the jurors who returned the initial verdict finding several cigarette companies liable for sick smokers in Florida.) ... But after a case is over, jurors are allowed to talk to the press. And I've found that many jurors are quite willing to discuss what it was like in deliberations. For most people, the jury experience is quite thrilling, and they want to talk about what they thought, what their motivations were. Because I generally don't cover ongoing trials (my regular work is at the Supreme Court), when I interview jurors it's usually several weeks after all the brouhaha has died down and other reporters have stopped calling.

    Azusa, Calif.: First, thank you for your coverage of the court. Your articles are, by far, the most insightful contemporary coverage of the court findable on the 'Net.

    My question: Although I thoroughly support the harsh treatment courts nationally are giving to Big Tobacco, I wonder where it ends. Are these huge settlements carrying over to -- and causing severe problems for -- other industries not nearly as guilty of deep transgressions as Big Tobacco?

    Thank you.

    Joan Biskupic: Thank you, Azusa! And to answer your question: some corporate defense lawyers who are concerned about the high jury awards in tobacco fear that jurors could begin venting their outrage at other unpopular industries, such as the entertainment biz or some chemical manufacturers. But they have a bit of a "the sky is falling" attitude. I found when talking to jurors that they were not mad at big industries generally, but at industries that they perceived were deceptive or reckless. ... And from the other side, lawyers who represent consumers who've been injured say it's about time jurors used their verdicts to put a check on corporate power.

    Washington, D.C.: Do you think lawyers can spot potentially activist jurors during jury selection and either fight for them or against them being empaneled?

    Joan Biskupic: Jury picking has become a big business, will all sorts of "experts" involved, demographic studies, post-trial interviews. (In fact, many of the tobacco jurors I talked to – from cases that went both for and against the industry – were debriefed on several occasions by lawyers for both sides.) I think lawyers have gut feelings about some people as they question them before trial, but it's hard to know what people are really like after a five-minute Q-and-A. And as I interviewed jurors myself, I couldn't pigeonhole the ones who were angry at the industries and mad that legislatures were not doing anything about potentially dangerous products: some were young, some were old; highly educated and drop-outs; male, female; smoker, non-smoker.

    Richmond, Va.: What's the difference, in terms of jurors talking, in the rules that govern regular juries and those that govern grand juries? I guess I'm confused about the function of a grand jury and how it would relate to jury activism.

    Joan Biskupic: Good question. Grand juries are very different. If you remember from the whole Monica Lewinsky ordeal, a grand jury is not an impartial panel; it is a tool of the prosecutor. A federal prosecutor presents evidence to a grand jury, which then decides if there is enough there to issue an indictment. That is just a set of charges, and those charges would have to be proven before a judge or a regular jury. Also, grand jurors are never supposed to reveal what went on in their sessions, during or afterward.

    Washington, D.C.: Given the controversy surrounding both tobacco companies and gun manufacturers, they seem a perfect target for jurors who want to "stick it to the man." Do you see other industries as likely targets in the future?

    Joan Biskupic: That's hard to answer. A "bad" industry is often in the eye of the beholder. Some people think that the verdict against the "Jenny Jones Show" last May was part of a backlash against trashy talk TV shows. A jury awarded $25 million to the family of a man named Scott Amedure who was killed by Jonathan Schmitz, about whom Amedure had confessed a secret same-sex crush on the show. .. Overall, I think it depends on the industry and the specific case the jury is hearing.

    New York, N.Y.: What recourse do judges and lawyers have when a jury delivers a verdict based not on the facts or the instructions, but on an urge to punish a company or an individual? Declare a mistrial? Threaten contempt?

    Joan Biskupic: There is essentially no recourse, because the motivations of jurors are off-limits afterward. A judge can lower the amount of damages awarded, as happened, for example, in a San Francisco tobacco case. The sick smoker's lawyers had asked for $15 million in damages. The jury had awarded $51 million. Then a judge cut it to $26 million. BUT, while a verdict can be appealed on all sorts of legal grounds, it cannot be overturned simply because jurors say later that they were mad not only at the particular defendant but all other companies like it.

    Washington, D.C.: You provide the most incisive analysis of the court of any of the reporters covering the court. What has been your greatest challenge in covering the Supreme Court?

    Joan Biskupic: You have to be a relative, right? Anyway, thanks. The greatest challenge generally is to take very complicated legal issues, understand them, translate them, and explain as simply as possible what it all means to the general public – and to make people realize the consequences of the law in their lives. Can you talk a bit about The Post's poll, which showed that 35 percent of people polled said they thought it was OK for jurors to take the lead in punishing companies. Was that a surprise? How common is it for juries to take on that activist role rather than sticking strictly to their instructions and the facts of the case?

    Joan Biskupic: Our pollsters had a hard time writing that particular question about litigation and legislation. (It was much easier to ask outright whether an industry was acting responsibly or not.) Our polling experts didn't want to sway people one way or another, and they realized that the question involved several difficult ideas. ... And, yes, it was a surprise that 35 percent said they approved of juries taking on a greater role in punishing companies when elected officials have not done a good job in writing regulations. Experts in this area (at the Post and elsewhere) said that was a significant minority that likely could influence what goes on in jury rooms. ... Finally, it is hard to know how often jurors broadly construe their role in a case. And even though I've used the term "activist" to describe some jurors, that's another one in the eye of the beholder. Some jurors say just because they are down on a particular industry doesn't mean that the facts of a particular case didn't warrant a whopping punitive damages award.

    Mt. Rainier, Md.: It seems to me that a large part of the juror anger has sprung from the perception that our legislators are unwilling to deal with renegade industries – either because they've been bought off or because they're afraid of the industry funding their opposition. I would rather juries didn't have to 'create' law for themselves, but I don't see much help for it either. Even decisive polls are not giving politicians courage.

    Joan Biskupic: This is exactly what a lot of jurors are saying. I heard over and over again that jurors felt deceived by particular companies but also that they were outrage at legislative inaction.

    Washington, D.C.: Have you ever served on a jury? Before you began to cover this beat? Or does your background preclude you from doing so?

    Joan Biskupic: I've served on a couple of juries in D.C. In fact, I once wrote a story for our Outlook section about being on a deadlocked jury (and I have to admit, I was one of the chief hand-wringers.) My being a reporter and lawyer has not stopped me from getting on juries in the District. This town is so filled with lawyers that if lawyers or reporters were blocked from jury service, we wouldn't have juries. That is hardly the case elsewhere, I know, where if you're even related to a lawyer you can get struck. On this subject, though, I can't help but mention that Justice Stephen Breyer, while he was still an appeals court judge, was called for jury service in Boston, got on, and ended up the foreman.

    Rockville, Md.: While I am strongly opposed to smoking and in favor of legislation limited exposure of non-smokers to smoking, I have a hard time justifying penalties against a company if someone started smoking after the dangers of tobacco were well publicized, e.g., in the Surgeon General's report. What is the legal rationale for passing responsibility from the smoker to the tobacco company?

    Joan Biskupic: This is a difficult issue for jurors. Personal responsibility. In fact, when the companies were on a winning streak, "personal responsibility" was jurors' mantra. I think what's changed is that some of the newly disclosed tobacco documents support plaintiffs' lawyers arguments that nicotine is addictive, the companies wanted to hook people and that some smokers had no choice. Not everyone buys this argument.

    Sebring, Fla.: The Supremes' recent decisions to "expedite" executions has led some to believe injustices have occurred, leading to the ABA's call for a moratorium on the death penalty "until greater fairness and due process are assured."

    What's the chance the high court will change its stance on death penalty implementations?

    Joan Biskupic: Unlikely. Every member of this court supports the death penalty and generally favors streamlining the appeals process. But that said, the court just this week granted a stay of execution to a Virginia death row inmate until he can have his appeal heard. It happens rarely. But it happens.

    Arlington, Va.: I think the trend toward outrageous jury awards in civil cases fairly mirrors the trend toward jury nullification in criminal cases. Do you agree? Do you see this as a problem? If the jurors are free to ignore the judge's jury instructions, how is that different from not having any instructions at all?

    Second, having been involved in the jury selection process, I think it is fairly obvious that the process is broken. Jurors are paid poorly; long trials often result in jurors losing their regular jobs, which results in many folks resorting to all manner of artifice to get out of jury duty. Assuming for the sake of argument that the law as given to jurors is a result of legislative process (and thus presumptively the majority of the citizens in that jurisdiction), are we not allowing a small minority (12) to make their own law which may be contrary to the will of the citizenry?

    Joan Biskupic: On your first question, yes, there are some similarities to nullification (in which jurors let the defendant off, despite the weight of evidence against him.) In both situations, jurors arguably are giving freer rein to their own sense of justice. However, with these product liability trials, the evidence might be there to give the plaintiff a victory, despite jurors larger goals. In nullification, the evidence does not support the verdict.

    And on your second question, you're not the only one with such concerns. Judges across the country are worried about how jurors are treated and how so many people try to get out of jury duty. They and other court experts are trying various ways to improve the experience for jurors and to improve jurors' ability to handle tough cases. ... I know people who try all sorts of excuses to avoid jury duty, but I always ask, "If you were on trial, wouldn't you want yourself as a juror?"

    Washington, D.C.: Do you think big jury awards and activist jurors will spur the likelihood of more and possibly frivolous lawsuits against corporate giants as a form of getting "justice" for what they see as corporate greed? "Holding Court" focused on high jury awards on July 23.

    Joan Biskupic: Maybe, but the system is supposed to be able to get rid of "frivolous" lawsuits at an early stage. Judges can throw out cases that have no grounds, no obvious merit.

    Arlington, Va.: I see tobacco and gun litigation as a fairly transparent attempt to accomplish in court what cannot be accomplished through the political process (state or federal legislation). Do you see any difference between this litigation and that employed by the Southern Legal Foundation, or whatever their name is, their attempts to use the courts to end affirmative action-quotas?

    Joan Biskupic: Hmmmm. Interesting question. The affirmative-action cases have been brought against particular institutions, for example, the University of Michigan and its admissions process allowing race to be a factor. But clearly there is a larger effort by groups supporting the lawsuits to get court rulings (and an eventual Supreme Court decision) that would outlaw any college selection or hiring based on race... But racial policies are ultimately governed by the Constitution's equal protection guarantees, so the courts are the appropriate place for some of these dilemmas.

    Arlington, Va.: Now that Ken Starr may be moving back to the private bar, do you think there is any chance he would have the credibility that he did 10 years ago as solicitor general?

    Joan Biskupic: I mentioned Monica Lewinsky earlier, so I have to let this Ken Starr question through before we end today. I don't want to comment on Starr's credibility, but I believe that there is no way he will ever be measured as a lawyer, for better or for worse, without consideration of his controversial time as independent counsel. ... I'm glad you mentioned that he was solicitor general, under President Bush; I'm sure many people forget he was once the government's top lawyer before the Supreme Court.

    Thanks to all for participating this week. I'll try to answer some of the remaining questions next time. But we will mostly focus next Friday on the Supreme Court. Things are heating up at the Marble Palace for the term that begins the First Monday in October. We'll take questions on how the justices decide which appeals to take, what's involved in the screening process and all the preparations underway at the court now.

    © Copyright 1999 The Washington Post Company

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