As has been widely reported, it’s no secret that the number of actual jury trials have declined precipitously in recent years. Too much risk. Discovery costs–particularly those associated with electronic discovery–have made the pretrial process simply too expensive. And there is a reluctance by some to trust juries with what they believe are complicated issues. The result: more cases are settled, typically in mediation.
But here is the rub. Without trials-and enough trials to get a true idea of how juries will treat an issue—how do you determine an appropriate settlement value? Historically, this value was derived from asking what a proverbial jury do with the issue at hand. Was there liability? How much would a jury think the damage and injuries are worth?
Last week, I discussed the value of more not less data to guide decision making. The same is true for jury verdicts. Without trials and data from actual trials, it gets harder and harder to come up with that valid value and prediction. And just like anything else, when we make predictions on bad, limited or old data, it often proves to be wrong. This is particularly true today when public and jurors attributes and beliefs can change and change quickly.
The Polaroid-Kodak Litigation is a case on point: many years ago, there was belief that a jury would take a strict view of patents in assessing whether they had been infringed. If the alleged infringement was not precisely in line with the patent. It didn’t happen. This was based on data-trial results-that were several years old.
Edwin Land, the founder and CEO of Polaroid, the company that developed the instant camera, proved this wrong. Polaroid sued Kodak for violating its instant cameras patent. Through Land’s sheer determination and hardheadedness, he succeeded.