Econometric Evidence in Jury Trials

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CHAPTER IV

ECONOMETRIC EVIDENCE IN JURY TRIALS

A. Introduction

Econometric evidence has been used by juries to substantiate

significant damage awards. For example, in Conwood Co. v. U.S.

Tobacco Co.,1 the jury appeared to have relied largely upon the plaintiff

expert’s econometric analysis in awarding $350 million in damages,

trebled to $1.05 billion.2

Relying upon an extensive database of responses from surrogate

jurors, focused attitude surveys, and anecdotal data obtained through

interviews with jurors after they participated in antitrust trials, this

chapter will present practical advice for jury trials involving econometric

evidence.3

1. 290 F.3d 768 (6th Cir. 2002).

2. Some observers have stated a view that the econometric evidence in

Conwood suffered from substantial flaws. Indeed, Daniel McFadden, a

Nobel Prize laureate in economics, submitted a brief to the Sixth Circuit

arguing that there were significant flaws in the plaintiff’s regression

analysis. This case will be discussed later in this Handbook in Chapter

VII.

3. Dispute Dynamics, Inc., a company that runs jury research and

participates in actual trials across the country, provided data referenced

in this chapter. Some of the data are from a database that was formed in

1994 and currently has over 12,000 responses from surrogate jurors.

Other data were collected in a series of focused attitude surveys. These

databases contain from several hundred to several thousand surrogate

juror responses. Anecdotal data were obtained through interviews with

jurors after they participated in antitrust trials. The relevant materials

are on file with the Economics Committee of the Section of Antitrust

Law.

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B. Background

While some antitrust litigators believe that a good economics expert is

critical to the success of their jury trials, jurors who listen to and evaluate

these cases do not necessarily agree. Research and interviews with jurors

after trials have shown that a significant perception gap exists between

lawyers and jurors. Many jurors are skeptical of paid experts and have

trouble trusting statistics. Roughly one-third of the jurors surveyed

believe that most expert witnesses will say whatever the lawyer wants.

Additionally, 44 percent of jurors surveyed are bothered by the fact that

expert witnesses are paid for their time. When asked to assess the honesty

and integrity of experts on a scale of one (low) to seven (high), jurors

rated paid expert witnesses an average of 4.6. Comments made by actual

jurors after deciding antitrust cases support these findings. These

interviews reveal that most jurors focus more on the overall story and key

fact witnesses than on expert testimony. Only a handful of jurors say that

a particular expert changed their minds about a case.

This does not mean that it is not productive to put on economic

experts in antitrust cases. Econometricians are critical for establishing

key points during trial. The availability of econometric evidence, or at

least economic testimony, may be critical to success on pre- and post-trial

motions as well as on appeal. It is important for econometric experts to

prepare for their testimony carefully. It is necessary to spend time

preparing to communicate with jurors, not just preparing an analysis.

This chapter will focus on how jurors generally evaluate economics

experts and what econometric experts can do to increase their

effectiveness.

C. How Jurors Think

Most jurors are motivated to understand the evidence and reach a just

result. However, lay jurors may find it difficult to absorb and recall

complex econometric testimony. Generally, the jurors’ attention to expert

witnesses peaks during the first twenty to thirty minutes of testimony.

After this time, jurors’ minds tend to wander. This is especially true after

many weeks of dry, technical testimony. Moreover, most jurors are visual

learners and are accustomed to simple, colorful, and glossy graphics, like

ones jurors see on television. Jury research shows that, on average, 62

percent of jurors get their news from television and less than half read the