A Compromise Approach to Compromise Verdicts

California Law Review

Volumn 89, Issue 2, 2001, Pages 233-

  Abramowicz, Michael ^a  

^a NONE

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EID: 0042692978     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: 10.2307/3481297     Document Type: Article

References (7)

1. Sometimes the complexities of the initial dispute are lost in a decision for one party or the other. "Although most litigated cases settle, the adversarial model does not depend upon persuading the parties to compromise, but simply declares who is right. It oversimplifies the conflict by reducing it to convincing one judge as to who should prevail." Lani Guinier, Lines in the Sand, 72 TEX. L. REV. 315, 360 (1993) (review essay).
2. A verdict for the plaintiff will not be an unequivocal victory if the jury awards only a low level of damages. Empirical evidence, however, indicates that judgments tend to produce clear winners and losers. See, e.g., Samuel R. Gross & Kent D. Syverud, Don't Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L. REV. 1, 40 tbl.24 (1996) (showing that juries rarely issue damage awards that are between the defendant's pretrial offer and the plaintiffs pretrial demand). Moreover, a recent simulation study indicates that when juries are exposed to evidence on compensatory liability and damages, an increase in the strength of liability evidence does not spill over into damage assessments. See Stephan Landsman et al., Be Careful What You Wish For: The Paradoxical Effects of Bifurcating Claims for Punitive Damages, 1998 WIS. L. REV. 297, 321 (noting, however, that when jurors were exposed to evidence related to the egregiousness of the defendant's conduct for purposes of calculating punitive damages, there was some spillover into compensatory damages awards). But see Jack Ratliff, Offensive Collateral Estoppel and the Option Effect, 67 TEX. L. REV. 63, 80 (1988) ("The damages proof often spills over into the liability issues so that a case weak on liability is saved if the damages are strong and vice versa. Some jurisdictions forbid the separate trial of damages and liability issues in tort cases, implicitly recognizing this spillover effect.") (footnotes omitted).
3. A verdict for the plaintiff will not be an unequivocal victory if the jury awards only a low level of damages. Empirical evidence, however, indicates that judgments tend to produce clear winners and losers. See, e.g., Samuel R. Gross & Kent D. Syverud, Don't Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L. REV. 1, 40 tbl.24 (1996) (showing that juries rarely issue damage awards that are between the defendant's pretrial offer and the plaintiffs pretrial demand). Moreover, a recent simulation study indicates that when juries are exposed to evidence on compensatory liability and damages, an increase in the strength of liability evidence does not spill over into damage assessments. See Stephan Landsman et al., Be Careful What You Wish For: The Paradoxical Effects of Bifurcating Claims for Punitive Damages, 1998 WIS. L. REV. 297, 321 (noting, however, that when jurors were exposed to evidence related to the egregiousness of the defendant's conduct for purposes of calculating punitive damages, there was some spillover into compensatory damages awards). But see Jack Ratliff, Offensive Collateral Estoppel and the Option Effect, 67 TEX. L. REV. 63, 80 (1988) ("The damages proof often spills over into the liability issues so that a case weak on liability is saved if the damages are strong and vice versa. Some jurisdictions forbid the separate trial of damages and liability issues in tort cases, implicitly recognizing this spillover effect.") (footnotes omitted).
4. A verdict for the plaintiff will not be an unequivocal victory if the jury awards only a low level of damages. Empirical evidence, however, indicates that judgments tend to produce clear winners and losers. See, e.g., Samuel R. Gross & Kent D. Syverud, Don't Try: Civil Jury Verdicts in a System Geared to Settlement, 44 UCLA L. REV. 1, 40 tbl.24 (1996) (showing that juries rarely issue damage awards that are between the defendant's pretrial offer and the plaintiffs pretrial demand). Moreover, a recent simulation study indicates that when juries are exposed to evidence on compensatory liability and damages, an increase in the strength of liability evidence does not spill over into damage assessments. See Stephan Landsman et al., Be Careful What You Wish For: The Paradoxical Effects of Bifurcating Claims for Punitive Damages, 1998 WIS. L. REV. 297, 321 (noting, however, that when jurors were exposed to evidence related to the egregiousness of the defendant's conduct for purposes of calculating punitive damages, there was some spillover into compensatory damages awards). But see Jack Ratliff, Offensive Collateral Estoppel and the Option Effect, 67 TEX. L. REV. 63, 80 (1988) ("The damages proof often spills over into the liability issues so that a case weak on liability is saved if the damages are strong and vice versa. Some jurisdictions forbid the separate trial of damages and liability issues in tort cases, implicitly recognizing this spillover effect.") (footnotes omitted).
5. I confine my attention in this Article primarily to suits for money damages, rather than suits seeking injunctive or declaratory relief. But see infra note 294 (discussing the possibility of compromise verdicts in injunction actions). In a suit seeking both money damages and injunctive relief, it would be possible to compromise on money damages without compromising on the injunction.
6. So-called primitive legal systems often seek to achieve compromise resolutions that may help reconcile the litigants. See, e.g., MICHAEL BARKUN, LAW WITHOUT SANCTIONS: ORDER IN PRIMITIVE SOCIETIES AND THE WORLD COMMUNITY 94-115 (1968) (arguing that primitive systems help reveal that the line between bargaining and dispute resolution need not be so clear as Western legal systems assume); TASLIM OLAWALE ELIAS, THE NATURE OF AFRICAN CUSTOMARY LAW 212 (1956).
7. So-called primitive legal systems often seek to achieve compromise resolutions that may help reconcile the litigants. See, e.g., MICHAEL BARKUN, LAW WITHOUT SANCTIONS: ORDER IN PRIMITIVE SOCIETIES AND THE WORLD COMMUNITY 94-115 (1968) (arguing that primitive systems help reveal that the line between bargaining and dispute resolution need not be so clear as Western legal systems assume); TASLIM OLAWALE ELIAS, THE NATURE OF AFRICAN CUSTOMARY LAW 212 (1956).