Although one of the legal system’s most salient attributes is its insistence that a civil jury choose the story of one party over that of another, scholars have thus far paid almost no attention to the possibility of replacing the preponderance-of-the-evidence rule with an alternative that is not “winner-take-all.” This Article focuses on the issue of uncertainty about what the defendant did or whether the plaintiff was injured, offering an alternative to the extremes of all-or-nothing and compromise verdicts. It considers the possibility that, while sometimes an all-or-nothing verdict is appropriate, at other times a compromise verdict would be better. It also proposes a compromise approach in the form of a system of mixed verdicts, distinguishing between cases in which the trier of fact has a relatively high degree of confidence in its liability determination and those in which there is much less certainty. As I will show, arguments for all-or-nothing verdicts are most powerful when the trier’s estimate of the probability of liability is either quite low or quite high, and arguments for compromise verdicts are strongest for cases in which the balance of evidence is relatively even. In Part I of this Article, I consider a variety of general arguments about compromise verdicts, arguments that seek to discern the best verdict structure for all cases without asking how verdict structure will advance various aims of law. In Part II, I consider several such aims directly, including deterrence, efficient breach, restitution, retribution, and equality. The impact of compromise verdicts and a system of mixed verdicts on litigation costs is examined in Part III, which focuses on incentives to file and settle lawsuits. Part IV switches from an examination of factual uncertainty to a preliminary assessment of legal uncertainty. Though the prospect of compromise solutions to legal uncertainty introduces some additional issues, a system of mixed verdicts may be a promising way to accommodate a diversity of normative approaches to legal decision making. In Part V, I briefly consider some implementation issues and conclude.
GW Paper Series
GWU Legal Studies Research Paper No. 2013-88; GWU Law School Public Law Research Paper No. 2013-88
Michael Abramowicz, A Compromise Approach to Compromise Verdicts, 89 CAL. L. REV. 231 (2001).