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
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
** Ph.D. (student), Northwestern University; M.A., University of Chicago; J.D., Seattle

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