Jurors' "New Math": How Jurors Calculate Damages
“TWO PSYCHOLOGICAL PROCESSES AFFECTING JURY DAMAGE AWARDS DURING DELIBERATIONS ARE THE POLARITY SHIFT AND THE GROUPTHINK PHENOMENA.”Jurors’ calculus for awarding damages is arguably the most idiosyncratic facet of the deliberation process. Although jurors’ haggling over damages often appears to be irrational at first blush, there is a logic underlying their methods and the outcomes. Understanding jurors’ rationale for damage awards can be most useful in determining if an alternative damage presentation is advisable or tailoring a damages argument to a jury so as to enhance its persuasiveness.
Individual vs. Group Dynamics
Individual Dynamics
Due to the spate of news coverage on high profile cases over the years, jurors have psychologically adjusted to hearing about large damage awards. Jurors’ individual evaluations of damages are strongly affected by the figures plaintiff’s counsel tenders during trial. Jurors have a psychological latitude of acceptance for damage awards, or a range of damage figures, they are willing to entertain. To the extent plaintiff does not ask for a damage figure that exceeds jurors’ latitude of acceptance, many jurors will trust plaintiff’s damage request as a reasonable sum. Thus, many jurors use plaintiff’s damage request as an anchor for evaluating or comparing defense’s damage figure, if an alternative damage theory is proffered.
Jurors’ individual assessments of damages can vary greatly for a number of reasons. Jurors’ experiences and attitudes are the most important factors influencing their individual damage assessments. Jury research is an effective tool for identifying jurors’ experiences and attitudes that differentiate punitive from non-punitive jurors. By using jury research to identify the decision path jurors follow to arrive at their damage awards, defense counsel can better plan a strategic response to overcome jurors’ tendencies.
Although there is not a single set of defining experiences or attitudes that characterize punitive jurors across all cases and venues, several trends have emerged from our research. Jurors who have experienced a recent trauma in their life (e.g., divorce, separation, loss of a loved one, victim of crime) tend to be more punitive than their peers who have not had similar experiences. In addition, jurors who perceive that they have been victims of some injustice, whether at work or in another context, are likely to be more motivated to award higher damages than other jurors.
Jurors’ personalities also exert a substantial influence on their desire to award damages. Jurors with an authoritarian personality are more likely to be punitive than jurors having a different personality type. Individuals with an authoritarian personality have a low tolerance for mitigating circumstances or ambiguity and a rigid adherence to social hierarchies. As a result, jurors with a high authoritarian personality believe that deviations from the rules of expected behavior (individual or corporate) should be punished. Jurors high in dogmaticism are very similar to those high in authoritarianism, but are more apolitical. They perceive issues and people in “black and white” with no shades of gray.
Group Dynamics
Two psychological processes affecting jury damage awards during deliberations are the “polarity shift” and the groupthink phenomena. ‘Polarity shift’ refers to situations in which a group makes a more conservative or riskier decision than the aggregate of the individual juror’s decisions. There are two primary factors that underlie the polarity shift phenomenon: (1) social comparison, and (2) persuasive arguments. Social comparison refers to the time when jurors first begin to discuss case issues during deliberations and they learn of the other jurors’ attitudes. Jurors compare their own opinions to attitudes of the other jurors as a means of seeing how they “fit in” the group. Some jurors hold back on expressing their damage awards for fear that they may be too extreme (small or large) and would not fit in with their peers. However, when jurors learn that others in the jury advocate similar or even larger damage awards than they do, they become more psychologically comfortable with awarding more extreme damage figures. As result, the jurors as a group become more secure with awarding a larger damage figure than they decided upon as individuals prior to deliberations.
Persuasive arguments refer to the fact that as jurors deliberate, they hear novel arguments from their peers that they had not previously considered. During deliberations jurors unveil their personal positions on the issues, evidence and testimony. As a result of hearing new arguments from other jurors, the critical mass of jurors’ attitudes regarding key issues increases until it achieves a threshold from which it is nearly impossible for jurors to overcome.
The groupthink phenomenon was so named as a result of the Kennedy administration’s debates over the Bay of Pigs debacle. All of the government officials included in the debate tended to think alike with very few dissenting opinions. Groupthink in a jury occurs when the jurors take a vote and all, or almost all of the jurors feel the same way. This may effectively circumvent jurors’ motivation to discuss the relative merits on both sides of the case. Few jurors want to invite attacks on themselves by others because they are holding out. The result is that jurors pay only token lip service to the evidence, testimony, and arguments presented by one of the parties. Taken together, groupthink and polarity shift account for why a jury’s damage award is sometimes substantially greater than the average of the individual juror’s damage awards.
Trends
We have observed a number of trends in how jurors factor in a variety of issues during their deliberations. Although the court rarely allows jurors to hear arguments regarding the role of workers’ compensation, insurance, and fees in plaintiff’s damage requests, some good defense jurors raise these factors during deliberations in an effort to hold damages down. By contrast, plaintiff-oriented jurors have been inflating damage awards because they believe that the award will be reduced when appealed. This is a relatively new trend, whereas solid plaintiff jurors have long been advocating for an increase in damage awards so as to ensure that plaintiff has enough money after contingency fees are taken out.
Sometimes jurors’ calculus for computing damages is nothing more than holding an auction. The foreperson may merely act as an “auctioneer” starting off the “bidding” at an agreeable figure, e.g., one million dollars, and throws out escalating dollar amounts as individual jurors continue to agree to a higher damage figure until the bidding stops. It can be a most daunting lesson to observe one of these auctions as the damage award jumps from $100,000 to $5,000,000 in a matter of a minute or two. Moreover, in a situation like this, if only one juror agrees to a higher figure, the auction continues. In other words, the foreperson does not seek to determine if all the jurors agree to each new figure thrown out for bid; rather, the foreperson continues the auction until finally, none of the jurors can support such a large damage figure.
Because jurors may be more concerned with avoiding conflict than holding damages down, some juries get caught up in a feeding frenzy of awarding damages.
In a recent jury research project, I observed several of these factors working in concert to devastating effect. The foreman held an auction and the award jumped from $250,000 to $10,000,000 in only a minute or two. Afterward, the lone holdout defense juror sarcastically mentioned that if the jury really wanted plaintiff to get $10,000,00 they should award $20,000,000 because of the attorney’s contingency fee. Not one juror picked up on his sarcasm and the foreperson mentioned that it was a good idea and asked if anyone objected to going to $20,000,000. No one objected and in a matter of two minutes, the damage award increased exponentially. In fact, the award increased eighty-fold!
Compromising With Damages
Jurors use damages to achieve a compromise in a number of different ways. For many jurors, the need to get along with their fellow jurors is an overriding consideration. To be sure, deliberations can get very heated and personal. However, jurors are highly motivated to maintain a civil atmosphere during deliberations and will go to great lengths to achieve that goal – even if it means giving a little bit more in order to reach a compromise.
Reaching A Verdict
Jurors frequently use damages as a bargaining chip to gain leverage or break an impasse during deliberations. Holdout defense jurors who will not concede on liability often use damages to advance their persuasive agenda. These jurors suggest to their peers that they will switch and find for the plaintiff if the panel agrees to limit damages. Plaintiff-oriented jurors frequently agree to limit damages so as to achieve their persuasive objective – a win on liability.
Retrofitting Verdicts
Juries are notorious for retrofitting verdicts to fit their damages decisions. More specifically, in personal injury and product liability cases, I have observed numerous juries in our research find for the defendant in terms of liability. However, when they reach the “bottom line” for damages, they suddenly reverse their position because they feel the plaintiff deserves some money. This is common in personal injury cases in which where neither the defendant nor the plaintiff were overtly negligent and liable for the plaintiff’s injuries. Jurors harbor a need to take care of the plaintiffs in these kinds of cases. All too often my clients, have prematurely declared victory during a research exercise when the mock jury finds for the defendant on liability – only to observe an abrupt overturning of the verdict because the mock jury wants to take care of the plaintiff by awarding some level of damages. Jurors retrofit their verdict to be consistent with their desire to award some level of damages to the plaintiff.
Alternative Damage Arguments
Due to the outcome of the Pennzoil-Texaco litigation, my clients frequently want to present an alternative damage figure to jurors in an effort to counter plaintiff’s counsel from exerting a unilateral influence on jurors’ damage awards. However, when defense has a good case on liability, defense’s alternative damage figures often exacerbate the problems confronted by defense because they “cut the legs out” from under the good defense jurors. Jurors often react very negatively to alternative damage figures because jurors teetering on their evaluations of liability believe that when defense offers a substantial sum of money while denying liability, they are, in fact, admitting liability.
Alternative damage figures frequently raise the persuasive hurdle too high for strong defense jurors to overcome. It causes defense-oriented jurors to think that the defense has doubts about its own case. As a result, the defense runs a risk of paying damages in a case in which it may have prevailed on liability. Rather than presenting an alternative damages theory in a close case, defense is best served by attacking plaintiff’s theory during cross-examination of its experts.
Conversely, in cases in which defense is handicapped by a weak case on liability, an alternative damage presentation can be very effective. An alternative damage figure arms strong defense jurors with a bargaining chip they can use during deliberations to hold damages down. When defense has a weak case on liability, it is critical to provide defense jurors with an alternative damage theory so as to outfit them with a persuasive weapon they can use against strong punitive jurors.
It should be noted that alternative damage theories should not be complex. Jurors are not motivated to understand convoluted damage theories. They prefer simple “easy-to-digest” theories with “tangible” damage figures. Jurors rarely possess the mathematical savvy to process elaborate damage theories.
Because jurors often use plaintiff’s damage figure as an anchor in deciding damages, it has a very potent effect on them. However, if plaintiff seeks a sum that exceeds a critical threshold, jurors often re-evaluate the plaintiff’s credibility. Advocating an excessive damage award often results in what is known as a “boomerang effect.” Plaintiff’s damage appeal then has the opposite intended effect – jurors will actually award less damages. Recently, one of my clients was defending an employment case in which plaintiff was seeking an excessive amount in damages and, as a result, won only a very small fraction of what was sought. To be sure, juries are not reticent about awarding large damages. However, the damage award must be consistent with the fact pattern.
Effects Of September 11, 2001
There are a number of schools of thought that have emerged regarding the effects of the terrorist attacks on jurors’ damage awards. The terrorist attacks may influence jurors’ damage awards differently depending on a variety of factors including, but not limited to the venue, nature of the litigation, and the characteristics of the litigants.
One school of thought holds that generally, the terrorist attacks are likely to have one of two effects on juries. First, due to the tremendous economic impact of the attacks, it is likely that jurors will exhibit more of a “team” attitude when evaluating damages in civil cases. In other words, many jurors will not view themselves on the opposite end of a political continuum from corporate America. They will tend to view all of America, corporate and consumer, as a team that must hang together in these most turbulent times if we are to pull ourselves out the economic mess that was created in the wake of the attacks. Thus, rather than juries having an “us versus them” attitude when evaluating corporate America, they are more likely to be motivated to protect corporate America. Jurors are keenly aware of just how fragile the economy is; many of them have personal experience with layoffs resulting from the downturn in the economy due to the attacks. Jurors may still award damages, but be less punitive in the amount they award. Thus, jurors may be more willing to try to be fair to defense so as not to push a corporation over the financial brink and exacerbate the already poor economic situation.
Jurors are also likely to view personal injury, medical malpractice, and product liability cases in a similar light. Jurors may use the horrific images of the carnage caused by the attacks as an anchor for evaluating plaintiffs’ damage claims. If jurors do use the aftermath of 9/11 as an anchor for evaluating pain and suffering, many plaintiffs’ damage claims are likely to be perceived as far less severe than the catastrophic loss experienced by the Americans killed or injured in the attacks. Indeed, jurors may minimize damage awards when compared with the atrocities perpetrated on innocent people on September 11, 2001.
A second reaction that is likely is for jurors to become more polarized or extreme in their damage awards. Although some jurors may be more forgiving of corporate infractions following September 11th, if jurors sense that a corporate entity intentionally violated a standard of conduct, they may very well become more punitive toward the transgressor than they otherwise would have been prior to September 11th. In other words, if jurors perceive that someone on the “American team” is taking advantage of another “American teammate” jurors are likely to take it upon themselves to sanction the corporate transgression severely. In an already bleak economic situation, jurors are not likely to sit idly by while a “corporate teammate” takes advantage of one of an already suffering citizenship. This unpatriotic behavior is likely to draw the ire of jurors more so than it would have prior to the attacks.
It is difficult to project how long jurors will be influenced by the images of 9/11. The fear of future attacks, and the role of the media in keeping the images in front of the public are likely to make the effects of 9/11 linger in the minds of jurors for a while. Jury research has long been an invaluable tool in revealing jurors’ reactions to case themes, witnesses, and evidence. Given the uncertainty of jurors’ reactions to 9/11, the need for jury research is greater than ever.
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