Vol. LV No. 2

The Death of Inference

Abstract: This Article examines a disturbing trend in civil litigation: the demise of the jury’s historic prerogative to draw inferences from circumstantial evidence. Judges have arrogated to themselves the power to dismiss cases if they find the proffered inferences factually implausible. They have increasingly dismissed cases under the “equal-inference rule” by finding the proffered inferences no more plausible than other available inferences. And they have severely limited the powerful inferences jurors can draw when they conclude that a witness has lied. Commentators have bemoaned the heightened-pleading standard of the 2007 and 2009 U.S. Supreme Court cases, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, but that heightened standard is only one slice of a larger pattern of power reallocation that has diminished the jury’s role in evaluating circumstantial evidence. The problem is particularly acute in cases involving defendants’ subjective states of mind, where defendants typically have both exclusive control over the direct evidence and a motive to conceal the truth. Instead of testifying live before a diverse group of factfinders, defendants can avoid liability by hiding their demeanor in a paper record submitted only to a judge. This Article proposes a three-tiered solution that would revest juries with inference-drawing power in state-of-mind cases while simultaneously instilling protections against the perceived costs of jury trials. The proposed solution ensures that state-of-mind cases may always proceed to discovery and trial. But it also allows for fee shifting to dissuade plaintiffs and their attorneys from pursuing weak cases and encourages judges to invoke more frequently their existing power to order retrial of cases in which verdicts appear to be incorrect.

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