By Dr. Ken Broda-Bahm –
(Recent mock juror quote)
Juror damage awards can seem erratic and inexplicable, not only to the public, but to experienced litigators as well. Particularly when jurors are valuing something other than a concrete expense by assessing non-economic or punitive damages, the process can seem driven by nothing more than caprice. One effect of mock trial research — namely, the ability to watch jurors toss around dollar amounts in real time — can reinforce this perception.
This is one area, however, where the appearance is worse than the reality. According to some new research from social scientists with Cornell University Law School (Hans & Reyna, 2011), there is a simple model that can explain jurors’ process of translating a verdict into numbers. Understanding the process can be a very important persuasive aid to any lawyer who is trying to convince a jury to open or close the purse strings.
The Researchers’ Explanation
In a just-released research paper, Valerie Hans and Valerie Reyna set out with the ambitious agenda of describing a decision making model which squares with what we know about juror damage awards. The result, “From Dollars to Sense: Qualitative to Quantitative Translation in Jury Damage Awards” is an impressive read, and I’d encourage anyone looking for a serious understanding of juror awards to peruse the full article. The authors propose a model accounting for the systematic, but still somewhat “loose,” process jurors employ when it comes to damages.
Their explanation hinges on the difference between numerical judgments and “gist” judgments. The preference for a gist judgement over a more precise analysis will be familiar to those who have read Malcolm Gladwell’s bestseller “Blink.” Experts and non experts alike tend to rely on general and subjective impressions before coming to a more definite conclusion. In the context of damages, Hans and Reyna find jurors’ system involves first, arriving at an “ordinal gist,” of whether damages, for example, ought to be “low,” “medium,” or “high,” and then translating that gist into a more specific number.
That may seem simple, but here is the kicker: The gist jurors arrive at (low, medium, or high) tends to be much more reliable and more consistent than the specific numbers. In other words, when we look at the gist of jurors’ damage awards, they tend to be more stable (or enjoy more “ordinal regularity,” in the researchers’ parlance) than they get credit for. When we look broadly at verdicts, instead of following headline-grabbing anomalies, there is a strong pattern of less severe injuries result in lower awards and more severe injuries warrant larger awards across venues and across time. Non-economic damages and punitives also closely track the scale of the more concrete economic damages in a case. That consistency, the authors argue, is a sign of the reliability of similar gist judgments being made in comparable cases.
The actual numbers, of course, can vary wildly because an individual jury’s effort to translate a gist of a case as low, medium, or high into actual numbers is highly dependent on individual perception and context. While $500,000 may be “high” in a vehicular injury case, the same amount would be incredibly “low” in an long-term environmental damage case. The actual numbers vary more than the gists because the jurors’ act of translating between the two is such a complex exercise. Understanding the “gist to numbers” two-step process is an important first step, but the more important question is what we should do about it in order to better predict and argue damages in your case.
There are four important recommendations that apply to both plaintiffs and defense attorneys.
1. Don’t Mistake a Loose System for Randomness.
Jurors’ system of translating damage gists to damage numbers may be loose, but it is more systematic than most appreciate. The common adage “anything is possible with a jury,” is literally true, but suggests that jurors are throwing darts when it comes to awarding damages. Based on the reliability of gist determinations Hans and Reyna show, they aren’t, and the misperception of randomness can be an unfortunate barrier to settlement. Plaintiffs, particularly after they’ve invested the time and money to be ready for trial, can be tempted to “spin the wheel” just to see what happens. And defendants, without a clear sense of what an actual jury would do, may be discouraged from offering settlement values that they can be confident in.
2. In Typical Mock Trials, Pay More Attention to Gist Than to the Numbers.
A surefire way to see jurors throwing around apparently random numbers is to give them just a little bit of information on damages in a mock trial, then ask them to give a value, then watch. It will be very educational to observe the process, but the numbers themselves will be all over the map. In addition to asking jurors to fill in numbers in a specific mock verdict form, it is also a very good practice to ask jurors individually and as a group whether they believe damages should be “low,” “medium,” or “high,” relative to what they would expect typical damages in a case like this to be. Jurors may do one thing in the mock trial, and quite another in the real trial after being armed with more detailed damages discussion, but their expectation that damages ought to be “high” is likely to be more consistent. For that reason, the gist is likely to be the most useful metric for a typical mock trial. When you need the number and not just the gist out of your pretrial research (e.g., to develop a settlement value), you can design the mock trial specifically for that purpose, and get a more reliable result, but that is the subject for a future post.
3. In Trial, Speak to the Gist As Well as the Numbers.
Too often, attorneys finish up with liability and cause, and then just dive into the specific damage numbers. That approach leaves out a critical step that jurors need. Before introducing numbers, it is important to justify the gist of damages you want jurors to arrive at. In other words, for a plaintiff, what justifies “high” damages in this case? One good example is provided in the well-known book, David Ball on Damages. It helps to present the concept of severity of injury, for example, as a scale with “no impairment” on the left, and “complete incapacitation” on the right, and ask jurors to think about where they would place your client’s injuries. If you think jurors are likely to place your client’s injuries to the right of the mid-point, then you’ve helped to provide a “high” gist for the damages, which will be useful when jurors start to think about the individual numbers.
4. In Trial, Use Meaningful Anchors
Of course, your actual jurors will still need to get from a gist to a specific number. The only thing helping them do that in a predictable fashion is something called an anchor, or a starting point that helps to set the amount from which jurors will adjust a figure up or down. Sometimes an anchor is established by a juror just throwing out a seemingly random number (as in the quotation at the start of this post), but the best practice is to provide meaningful anchors to your jurors. Meaningful anchors come from a couple of different places:
a. Definite categories, used as a guide for an indefinite category. For example, jurors will look at the medical expenses to date as a reference point for future expenses, or even for pain and suffering.
b. Damages caps. When they know about a cap on damages, jurors can use that ceiling as an anchor (this is one of the reasons why some venues that have adopted caps have seen average awards paradoxically rise as result).
c. Attorney requests, expert conclusion, or ad damnum. Even if jurors reject a request, it can still affect jurors’ estimation simply because it is a default starting point for adjustment.
d. Contextually relevant numbers. In some cases, a particular period of salary, or sales, or profits might have meaning that spills over onto a non-economic category. Jurors in the McDonalds hot coffee case, for example, awarded two days of coffee sales as punitive damages.
e. Round numbers. The final anchor, oddly enough, is simply round numbers that seem to be meaningful to jurors — $10,000 or $100,000 or $1 million. As part of the evidence that jurors relied on gist first and calculation later, Hans & Reyna found a significant bias in favor of these numbers when assessing the 2005 Civil Justice Survey verdict numbers.
Whatever the anchor, both plaintiffs and defendants should provide them in order to help jurors to get from gist to value, and to provide numbers that are predictable and grounded.
The bottom line is it isn’t a crap shoot, unless you make it one by failing to guide the jury.
- A Mixture of Justice and Revenge: Target Juror Psychology in Awarding Damages
- Don’t Count on a ‘Recession Effect’ When it Comes to Damage Awards
- Make Sure Jurors Understand That You “Get It”
Valerie P. Hans and Valerie F. Reyna (2011). To Dollars from Sense: Qualitative to Quantitative Translation in Jury Damage Awards Cornell Legal Studies Research Paper, 11 (25)
Photo Credit: frielp (Paul Friel), Flickr Creative Commons