By Dr. Ken Broda Bahm:
Watching a mock jury deliberate about damages can give you the idea that when it comes to numbers, jurors can be a little random. For example, a jury might see a big difference between $500,000 and $1 million in one moment, and then act as though there is little to no difference between $1 million and $20 million in the next moment. The feeling with some jurors is that, once we are talking about “big numbers,” then one big number and another big number are in the same neighborhood. This “In for a penny, in for a pound” kind of attitude shows a lack of the skill called “numeracy,” or comfort and ability to work with numbers. To be sure, it can be a challenge to map a case’s facts onto a number, particularly when dealing with non-economic categories like “pain and suffering” where there may be no clear or concrete reference points. The traits of those on the jury can add to that unpredictability when jurors don’t have clear facility with numbers.
Researchers from Cornell Law School and Exeter Law School (Helm, Hans, Reyna & Reed, 2019) wanted to assess the ways jurors’ numerical abilities influence their ability to determine damages in a consistent and meaningful manner. Working with 345 research participants, the team measured jurors numeracy both subjectively (Do you believe you are good with numbers?) and objectively (In tests, are you actually good with numbers?). Jurors then were presented with a case fact pattern that manipulated a plaintiff’s pain and suffering into higher or lower amounts. What they found is that, among those with higher objective numeracy, the mock jurors’ damages awards were more valid (higher amounts for higher pain and suffering, lower amounts for lower) and more reliable (consistent across cases). “Jurors higher in objective numeracy gave dollar awards that more appropriately reflected the duration of pain and suffering, and also showed less variability in awards.” In addition to testing numeracy, the team looked at the effects of providing a reference point, an anchor number, and found that when the amount is meaningful (e.g., a median lifetime earnings amount), then that anchor supplied many of the same benefits as a highly numerate jury. In this post, I’ll take a look at both the numeracy of your jury as well as the effects of a meaningful anchor.
Your Jury’s Numeracy
Research suggests that it is better to have a numerically savvy jury than an numerically illiterate one. The numerate jury will be better able to deliver a number that is realistically reflective of the arguments you are making.
But, importantly, it is objective numeracy that counts. The subjective belief in one’s numeracy skills did turn out to be modestly related to objective skills, but generally was not a significant predictor of the benefits shown in the study. So, it does not help to ask jurors in voir dire to give their own self-assessed numeracy. And you cannot give them a math test, either. So, you are left with assessing things that you can measure. The jurors’ “Need for Cognition,” for example, is likely related to numeracy and other trial-relevant traits, and can be measured in a questionnaire. In addition, it may help to look at jurors’ occupation and make some reasonable but not perfect estimates: The highly educated, engineers or managers, and those who use budgets, math, and numbers as part of their jobs are likely to be more numerate.
But remember that jurors aren’t economists, and won’t always take a perfectly logical approach to numbers. Many in the research team have published before on a model for jury damages focused on their stages in moving from a ‘gist’ (high, medium, low) to a specific number. So, as much as it makes sense to teach the numbers, it is also critical to address that ‘gist.’
Your Anchor
While it helps to think of the jurors’ numerical approach, it probably helps more to guide them. I’ve written many times about the benefits of providing a reference number to anchor jurors’ thinking in your preferred direction. It is a good idea for both plaintiffs and defendants to seek this kind of influence over the jury’s deliberations. You won’t always get what you aim at, but you will be generally closer than you would have been if you hadn’t taken aim. What this and other research shows, however, is that the meaningful anchors are better, and the number should have a connection to its function. The amount McDonald’s earns from one day of coffee sales, for example, was famously used in the familiar hot coffee spill case. While you won’t always get it in, you should always try to give that guidance. This research study on numeracy is the first study to show that providing an anchor is akin to raising the mathematical abilities of those on your jury. An anchor makes it possible to achieve a more relevant and consistent number from the jury.
Other Posts on Damages:
- Normalize Your Damages: Five Ways
- Remember, With Damages It’s the Message and Not Just the Math
- Consider How Jurors Arrive at Damages Numbers: In Stages and With Difficulty
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Helm, R. K., Hans, V. P., Reyna, V. F., & Reed, K. (2019). Numeracy in the Jury Box: Numerical Ability, Meaningful Anchors, and Damage Award Decision Making. Applied Cognitive Psychology