Lately there has been a lot of debate in the Texas Legislature and the United States Congress regarding the effectiveness of the jury system in resolving civil lawsuits in a fair and equitable manner. Indeed, whatever side a person comes down to in the debate, the jury system is under attack. Many people have approached me with questions about some of the ads they have seen concerning this matter so I have devoted this month’s column to addressing some of these critical issues.

Q: What are the major concerns people have regarding the jury system?

A: Most opponents of the jury system for civil lawsuits believe that jurors can’t keep passion, sympathy or emotion from compelling them to award unreasonably high damages. Everyone has seen the news of multi-million dollar jury verdicts for cases that don’t merit same – an opponent would say.

Q: I have seen those awards in the paper myself – like the woman at McDonald’s that got burned with coffee – it seems some repair is needed. What is the other side of the debate?

A: Opponents would say that what you are observing in the press is an anomaly of the system and it has given you an unfair view of the jury system. They would argue that the press does not report the thousands of people who leave the courthouse with nothing despite a clear injury. Proponents of the jury system would further explain that most of the huge damage wards are significantly reduced on appeal and that the appeal result is rarely reported in the press – as was the case in the McDonald’s example you cite.

Q: Does the debate over the jury system roll into criminal cases also?

A: No. Opponents of a pure jury system in civil cases believe a criminal jury is still the best decision maker when it comes to small criminal cases all the way up to the serious death penalty cases. These people believe a jury is simply unable to fairly way economic interests as those in civil case.

Q: What are the solutions being proposed?

A: Many “tort reformers” would like to see cases decided by judges and not juries but this idea so far has not made much headway. Others would like jurors to decide liability and have the judge assess damages. The final proposal and the one that has taken root here in Texas, and a small number of other states, places caps of jury awards in every case.

Q: What about the first idea – what do opponents think?

A: Opponents argue that the jury system is part of our philosophy of less intrusive government. Why do we want the government deciding our fate if we could have twelve of our neighbors resolve the conflict? Furthermore, they would say that the jury system was adopted to prevent a political judge from impressing his politics on litigants. The jury system has been around for over 500 years and has proven to be the best solution to solving disputes.

Q: How about letting the judges decide?

A: Opponents would say that you are risking justice for all to prevent the injustice that may occur to the few. Since judges are elected in Texas and are forced to raise campaign funds, cases will be decided based upon who was the highest donor to the judge rather than the merits of the case – some would say. Others claim that jurors are the best conscience of the community and the multiple number of them decreases bias playing into the decision.

Q: What about damage caps?

A: Opponents say damage caps are a one-size-fits-all solution to a nonexistent problem. They would cite a recent study that shows slightly more than 60% of the time defendants in civil cases win their appeal here in Texas and that the appellate courts are consistently reducing damage awards, sometimes at the expense of justice. Even if that were not true, they would argue that damage caps unfairly limit the damages to the most severely injured and encourage higher than equitable settlements to the least reprehensible cases.

Q: What about doctors leaving the practice because of liability insurance concerns. It seems that has been widely reported in the press and has a serious affect on doctors. What are the opponents saying?

A: Opponents say that doctors are consistently one of the highest paid professions and that many of them collect substantial estates for their work. One of the costs of doing business, opponents would say, is paying for liability insurance and that insurance companies are charging enormous rates that ought to be regulated. Furthermore, if doctors would get rid of the handful of their own who consistently get sued, all rates would decrease. Doctors could do this through the state board but most recently it has allowed the egregious cases to slip by.

Q. What has been the effect of the most recent damage caps had on insurance rates?

A. Proponents would argue that it is too early to tell and that at least one insurer has talked publicly about reducing rates. Opponents will claim that three out of the five biggest insurers in Texas have already raised the rates once since the law change and that one has raised theirs twice.

Q. If opponents disagree with these ideas, what are their solutions?

A. Opponents argue that no solution is needed or that there is no better system than a jury system. They would say that every system is imperfect and may cause injustice but that injustice caused by our current system is less severe than under any other system. They would claim that in this case, the philosophers and barristers of the last century and before have developed the most perfect system.