Shaq and the Case of the Missing Bribes

My coauthor (and spouse) Jennifer Brown just finished serving as foreperson on a civil jury in Connecticut state court on a two-week trial.

“There are circumstances where a one-off bribe can work wonders.”

Maddeningly, she was scrupulous in declining to tell me anything about the proceedings until the verdict was in and the judge gave the go-ahead (think twice before you marry someone who teaches legal ethics). The second week of the trial imposed uncompensated costs on the family (especially on Jennifer, who had to cancel a trip to deliver a paper).

Nonetheless, even now she remains skeptical of my suggestion for a way that she could have promoted efficiency and settlement.

I’ve suggested that she could have sent the judge a note at the beginning of the trial offering to give the parties $1,000 if they should settle before the end of the first week. The note would also make clear that failure to settle would not impact the way she would eventually decide the case.

Should a juror be dismissed (or disciplined!) for making such an offer?

I hope not. The offered bribe promotes efficiency because it helps the litigants internalize what would otherwise be external costs. The other jurors who have uncompensated costs should be happy. Other litigants who want their day in court should be happy as court personnel are freed to handle other, waiting matters.

Moreover, the contribution should be welcomed by the very litigants in the dispute at hand who have an extra $1,000 to play with if they can come to terms. There is little reason to think that it would undermine the integrity of the trial. For one thing, the bribing juror would make clear (and be sincere) that she would remain impartial; for another, the bribing juror wouldn’t know who to blame for a failure to settle. (Well, this isn’t exactly true. If the plaintiff asked for $3,000 at trial and Jennifer offered $1,000, she could be fairly confident that the defendant was offering to pay less than $2,000. She might penalize the defendant if she thought that was an unreasonably low offer.)

A bigger concern is that in the long run, creating a precedent of juror contributions might lead to distortions in decisions to file suit and to impanel jurors. We could imagine sham litigation where plaintiffs and defendants went to trial with hopes of shaking down the jurors — a kind of de facto extortion. Or litigants might prefer to strike poorer jurors from the panel in hopes of keeping the richest jurors as potential contributors.

The extortion concern might explain a lot of our reluctance to offer bribes. But there are circumstances where a one-off bribe can work wonders. When my kids were little, I remember bribing a college student on an Amtrak train to move to another open seat so that my family could sit together.

In fact, I wonder why Shaq and a few other NBA players haven’t offered to make modest contributions to help resolve the current referee dispute. Shaq has publicly supported the refs in their negotiation with the league. He worries that replacement refs will increase his probability of injury. He comes by his concern naturally since he was injured during the last ref lockout in 1995 (“O’Neal needed surgery for a broken thumb after being fouled by Matt Geiger in a preseason game.”) In some ways, Shaq may just be trying to curry favor. After all, sooner or later the unionized refs will be back officiating NBA games, and they may (consciously or unconsciously) favor the players who had their back during these negotiations. But whatever the mixture of self-interest and altruism, Shaq might go further by offering, say, $100,000 if the dispute is resolved before the regular season.

It’s hard to know for sure, but some public reports suggest that the two sides may be less than a million dollars apart. This would be a paltry sum for a few concerned players to kick in — and Shaq is unlikely to be around to contribute to future labor disputes.

One of the big reasons that offering a bribe can be valuable is that I’ve found that the offer can be effective even if you don’t ever pay. Just your willingness to make a real offer credibly signals your value (because it might be accepted).

For example, a couple of years ago I had to fly into Chicago at the last minute for a wedding that was going to take place on a cruise ship in the middle of Lake Michigan. My flight was late and I had very little time to take a cab from O’Hare Airport to the boat dock. But when I got to the cab stand at the airport, there were 30 or 40 people waiting for a cab. I walked to the front and offered any one of the first five people something like $100 if they would let me take their place in line and help me make my wedding boat. My thought was if I paid for a single person’s place (and that person moved to the back of the line), I wouldn’t be holding anyone else up in the line.

Two or three guys at the front of the line — as well as the O’Hare employee managing the line — started asking me about the wedding (Was I in the wedding party? How did I know the groom?) to get a better sense of my bona fides. In the end, they offered to let me cut to the front without paying. This was not my preferred option because this self-appointed group was imposing costs on a bunch of other people in the back of the line who really didn’t have an opportunity to see or hear what was going on. I would have preferred to pay a Benjamin. But sadly, with the blessing of the O’Hare line manager, I was whisked on to the next waiting cab without paying for the privilege.


Bayless

Have a little extra money to throw around, do you?

Jamie

There is no way that $1,000 is going to be nearly enough to incentivize litigants to settle a case instead of going to (a jury) trial. Jury trials are so expensive that would not be going forward in the first place if the parties are so close to reaching a settlement that an extra $1,000 would make a difference.

Luigi

I don't see how the offer of a bribe is relevant in your airport-taxi scenario. Wouldn't the outcome have been just as likely if you'd merely gone to the head of the line and said, "I'm desperately in need of a cab to get to a wedding that's happening in half an hour. Would one of you please let me cut in front of you?"

And if you were really sorry that they let you cut without paying the $100, why didn't you refuse on those terms? "No, no, I can't let you do that. Let me buy a place, or I'll join the queue like everyone else."

jonathan

Interesting question.

I'd say that we should consider taking the idea further, as in a
funded pool that offers incentives to end cases earlier. The pool could be funded out of lawyer contributions through the bar, by a small per litigant (not per award) surcharge.

Clifton Ealy

You seem to use "bribe" as a synonym for "pay". I do not think this is standard usage.

Offering someone money to switch places in line with you is not a bribe. Offering someone money to let you cut in front of them is (I would say) a bribe.

Offering someone money to switch to a different seat on a train is not a bribe. Offering a conductor money to tell the person to move to a different seat is a bribe.

jane

Allowing jurors to bribe the parties of a lawsuit to settle earlier rather than later provides an incentive for those suing to prolong the trial - in the hope of getting such a bribe. It's one of those cases where one-off is a great idea, but once they become part of the system, it is a major inefficiency.

Serving on a jury is meant to impose uncompensated cost on the citizens - it is the cost of democracy, after all. If it is cheap, it not worth much.

Paul

Many of us don't have an extra hundred to buy our place in line nor do we have 1,000 bucks to bribe litigants.

Maybe those who don't want to do jury duty should be able to buy their way our of jury duty and the price they pay should be passed on to jurors who have the time to be on juries, but lack the funds to pay their way out.

You could charge citizens 50 dollars a day to get out of jury duty and pay jurors 30 dollars a day (after the first week -- since sitting on a week long jury seems like a civic duty).
Actually, I don't know exactly what is a fair price to get out of jury duty nor a fair price to be paid, but there is some set of figures that tally up.

There are some good ideas here.

Last minute fliers could offer to pay airline passengers to get off the plane at the last minute, for example.

The proposals here remind me of concert and sport events ticket brokers. Some people don't have the time or the interest to buy tickets in advance. So they pay a premium to get tickets when and where they want. The seller provides a service, so they get a fee.

I wonder if you could just tip the guy running the taxi line. My son is a host in a popular restaurant -- he gets offered bribes for the ability to cut the line all the time.

I'm guessing that the author of this post also

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Kevin

Wow, any hint of referees receiving payment from specific players would be problematic, no? I would think the NBA (and the refs themselves) would have a HUGE problem with that. Any time Shaq got a favorable call, people would question whether it was related to him helping the refs settle.

Jon

One question regarding the juror offering $1000 for an early settlement:

I feel that in atleast some of these cases, litigant specifically desires the defendant to pay damages, costs etc. Instead of maximizing collective utility, both defendant & litigant might be more interested in maximizing relative utility, in which case the extra $1000 would be divided $500 each, while the original claims/dispute would stand as it is.

@Luigi: Cutting in line would have pushed everyone in the line one spot behind which the author felt was an excessive collective cost, hence his offer to buy a single spot near the front with the spot seller agreeing to go to the end of the queue.

Tyler

@Luigi

The outcome would not have been the same. He was initially asking for someone to switch places with him, i.e. the guy in the front of the line accepts his $100 and then proceeds to move to the rear of the line. That way the number 2 man is still number 2 and so on.

Kevin M

Shaq seems to be working under the assumption that replacement refs will be of lower quality, but if last year's playoffs were any indication I doubt the replacements could be much worse than those currently employed.

Cory

As a trial attorney, I can tell you $1,000 is insignificant in deciding whether or not to settle the case. $1 million, $5 million, depends on the case. $1,000 - any case worth trying will blow through that before the lunch break. Heck, there are some attorneys out there who charge more than $1,000 per hour.

Andrew

But what about the situation in the classic movie Jury Duty, starring Pauly Shore, in which a juror purposely extends the trial in order to collect the $3 per day pay?

Daniel

Like most of the other commentators, I really don't think the $1000 would have a significant affect on the litigants.

I don't know the exact statistics, but I am fairly certain that well over 95% of cases end up being resolved by settlement without a trial. The general consensus seems to be that there are two primary reasons for this: First, as Jamie pointed out above, the costs of actually litigating a case are extremely high and are essentially sunk. Litigants already have a huge incentive to settle to avoid these costs. The second big reason is risk aversion. If a case goes to trial the Plaintiff knows there is always the chance that they will get nothing, while the Defendant has to be wary of the possibility of a colossal damages award from a jury. Both sides have a big incentive to compromise to achieve the certainty of a settlement.

Because of these two big incentives to settle, only a very small percentage of cases actually go to trial. Those that do typically either have potential gains/losses so large that the risks and costs associated with trial are deemed to be worth it, or are based on some fundamental disagreement about the merits of the case. In the first instance, $1000 is probably just going to be a drop in the proverbial bucket. In the second instance, the primary objective of the parties is to have their position vindicated. When the litigation is based more on fundamental differences of opinion, money becomes less of a motivating factor.

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Christopher

I really believe either the loser or both parties in a trial should pay the jury what they're worth for the time.

Toby

The 100 dollar thing can also be a manipulative move. You know when you're at dinner and somebody reaches for their wallet or purse a little preemptively?

Stephen

@11

How many players were seriously injured during this past year's playoffs? Please don't sound like a fanboy, there are other functions refs do than "sit there and recite the rulebook" and start and stop the clock.

Having only 1 qualification for "quality" in a referee is like saying all that matters in a baseball player is the number of homeruns they can hit, that their on base percentage, speed, fielding ability, team chemistry, etc doesn't matter. This isn't a video game, more than one statistic matters.

Lizzy

Horrible idea all around, especially the extremely misguided use of the word "bribe". There's a reason why a bribe is a felony, whereas compensation is just that. Paying someone to stand in line for a cab is a far cry from meddling in the outcome of a jury case.

You are obviously a very wealthy man to mention tossing around the kind of cash you do. Your thinking, that you can just "bribe" or buy your way out of inconvenience or responsibility shows the sort of disregard for society in general that gave us a monster economic meltdown recently, along with a lot of evicted bankrupts, unemployment, and a huge human cost all around.

It boggles the mind that you feel guilty about some folks in Chicago doing you a true kindness without cash involved but think it plausible to throw money at some strangers search for justice and influence that to your convenience. The hell with other people already! I suppose that cash negates all that messy irritating stuff like conscience, gratitude, civic duty... That is so creepy of you.

Perhaps you should try getting places on time to get places on time; catch an earlier plane. Get on the train in time to get seats together. And the crummy attitude towards jury duty? I'm sure you can find a cozy dictatorship that would never impose the bother of that on you; with luck they may have totally dispensed with a courts system completely.

I'd like to hear the reaction of the judge involved in your wife's jury duty Mr Ayres. Making light of committing a felony in the middle of a jury case is a bad joke and a misguided proposition. Ask your ethics expert wife about the word "morals". Then ask her if she knows where yours are.

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Tilemahos Efthimiadis

Taking Paul's comment a little further (in a broad sense):

- Wouldn't the pay-to-avoid-jury-duty option mean that in the end those who don't value their time so much and/or don't have the means to pay will end up with jury duty? Doesn't this institute a bias in the selection of people in the jury? "jury of your peers" becomes "jury of poor/retired people".

- If the parties don't accept the money, and the case is a poor person is suing a rich one one, then the jury would know who to blame.

- "You could charge citizens 50 dollars a day to get out of jury duty" I like this idea. Your name comes up, you pay, another random person is chosen. It is more simple. Of course, the arguments in my first point are still valid, but it is an improvement.

Zbicyclist

As a Chicagoan, I'm appalled at the use of the word "bribe" to describe such a wide variety of things that cover the ethical gamut. Just as Eskimos have many words for snow ...