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78 U. Cin. L. Rev. 929 (2009-2010)
The Complexity of Complexity: An Empirical Study of Juror Competence in Civil Cases

handle is hein.journals/ucinlr78 and id is 935 raw text is: THE COMPLEXITY OF COMPLEXITY: AN EMPIRICAL STUDY OF JUROR COMPETENCE IN CIVIL CASES Matthew A. Reiber* & Jill D. Weinberg** Civil litigation occasionally requires jurors to resolve esoteric factual disputes or sift through voluminous, technical evidence. Existing scholarship questions whether jurors can understand the facts or evaluate the evidence in complex cases-typically advocating a complexity exception to the right to trial by jury or some other prophylactic measure to limit lay juror participation. Such scholarship, however, is based on anecdotal evidence. This Article contributes to the literature by evaluating juror competence in light of data collected during a survey of individuals summoned for jury duty in federal court. The survey featured three hypothetical civil actions of increasing complexity: a negligence case arising out of an automobile accident and involving a single plaintiff and a single defendant; a breach of contract case arising out of the untimely delivery of component parts in a manufacturing chain and involving a claim, an affirmative defense, a permissive counterclaim, and a third- party claim; and a securities fraud case arising out of alleged insider trading and involving circumstantial evidence of wrongdoing. The results indicate that comprehension declines as complexity increases, particularly when the complexity arises from the presence of multiple parties or claims. The results also show that comprehension does not improve with education or prior jury experience. The results suggest that, in the absence of systemic reform, trial courts must use all available devices to assist jury decisionmaking, such as providing detailed introductory instructions; permitting note-taking; allowing interim summation by counsel and discussion by jurors; allowing jurors to formulate questions for witnesses; providing concluding instructions prior to argument; and using special verdicts. * Assistant Professor of Law, Florida Coastal School of Law. The empirical study underlying this Article would not have been possible without the support and assistance of the judges and jury administration of the United States District Court for the Western District of Washington. In particular, we would like to thank Chief Judge Robert Lasnik, Judge Ronald B. Leighton, Bruce Rifkin, and Jeff Humenik. ** Ph.D. (student), Northwestern University; M.A., University of Chicago; J.D., Seattle University.

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