By Dr. Ken Broda Bahm:
When jurors are awarding damages in a civil case, the law looks at what they’re doing in a binary way: They are either compensating the plaintiff for what they have lost, or they are awarding additional amounts to set an example. In short, anything outside of “making the plaintiff whole” is “punitive.” But jurors don’t necessarily look at it within those strict categories. Motivations to punish or “send a message” can often drive discussions of compensatory damages, especially in non-economic categories where jurors don’t have any concrete guideposts. More generally, jurors commonly want the damages they award in any of the categories to do something. They want the award to not just satisfy a mathematical question that the court is asking them, they want to accomplish something, either for the plaintiff, the defendant, the community, or some combination.
Outside of the law’s constraints, I think it is helpful to think about damages being “functional,” “constructive,” or “instrumental,” with punishment or compensation being just two of the goals that might be accomplished. In addition to that, or quite apart from that, jurors might also want to demonstrate something to the field, drive regulations, change company policies, or influence the course of future lawsuits. Based on what I see in watching mock trial deliberations, and in talking with jurors after cases come to a verdict, the main instrumental motivations that crop up when jurors get to the point of addressing dollars are the following.
When it comes to awarding damages,
jurors may want to…
1. Pay the Bills
Show me the receipts. I don’t think he should get any windfall,
but let’s not leave him hanging on the expenses.
The narrowest mindset for jurors focused on damages is to primarily, or exclusively, focus on concrete categories of actual expense: medical costs, rehabilitation, lost income, etc. This is the approach often favored by jurors who are suspicious of lawsuits and critical of non-economic or punitive categories that lack that concrete grounding.
2. Secure a Future
She has to rebuild her life now, and she needs enough to have a solid foundation for that.
She should be able to work on recovery and not worry about money.
Jurors might project themselves into the future, imagine what life might be like for the plaintiff, and seek an amount that makes the plaintiff not necessarily wealthy, but taken care of. They don’t see it as a windfall, they see it as looking at the concerns the injured party might have, and taking one of those concerns — money — off the table.
3. Even the Scales
The plaintiff needs to get some power back.
Should they get rich? Sure, absolutely!
The company certainly did.
These first three categories focus on the plaintiff, with this version, the broadest one, focused on transferring wealth so that a plaintiff gets what they deserve. Apart from whether the amount compensates or whether it punishes, the goal is to rectify an imbalance that was created by the loss or injury, and to — as the old courtroom adage goes — right the scales of justice.
4. Nullify the Greed
This company wasnt’ thinking about possible injury, they just wanted money.
And they made money — lots of it. We need to take away the incentive
for doing that, we need to put that money back in someone else’s hands.
A step up from just wanting to restore the balance, jurors might also want to engineer the motivations of the defendant, and any future similarly-situated defendants, by taking away any perceived benefit from the actions that led to the loss or injury. In other words, if there was an unfair gain from a given course of action, then that money needs to be sent somewhere else.
5. Change the Policy
If an accident like this can happen,
their precautions are simply not enough.
If they get a verdict like this, I think they’ll change them
and that will protect more people in the future.
In many cases, jurors won’t hear about any subsequent remedial measures and they might fill that vacuum with the assumption that nothing has been done. If the event itself, or a pattern of previous events, wasn’t enough to change the defendant’s behavior then the jurors reason they might need the verdict to be that nudge.
6. Punish the Company
The bottom line is they rushed, and they lied,
and the only thing they seemed to care about
is getting caught. They need to pay a price for that.
In addition to taking away the incentive, the jurors might also want to levy a penalty. This, of course, is the traditional “punitive” or “exemplary” category, but as a juror rationale, it matters just as much when jurors are thinking of the compensatory damages. If plaintiffs’ counsel is asking for more than their clients might strictly need, then the motivation to award that additional amount is often to teach the company a lesson.
7. Warn the Industry
When this amount appears in the papers,
I want the other companies in the market
to take notice. I want them to think twice.
The lesson in a high damages amount can be intended for more than just the defendant. If the danger that is connected to the plaintiff’s loss is perceived to be a general danger — one that effects customers or members of the public who interact with others in the same field — then the jury may want to take action that prompts a more general warning.
8. Wake Up the Government
This can’t keep happening…
These companies just take the loss and move on.
Can we award an amount that says this needs to be controlled?
The solution could be to activate a third party, like a regulator. Often companies are assumed to want to do whatever they’re not actively prohibited from doing. The jurors, seeing themselves as an arm of the government — which, of course, they are — might seek to use damages in a way that they believe might set a broader public agenda for fixing the problem in other ways.
Of course, in many of these categories of motivation, the plaintiffs themselves are just examples of the harm that can be caused, and not the main target for damages. The “Reptile” approach that plaintiffs often apply is grounded in that reality. Depending on the case, it is likely that there is additional nuance, and many more frames of reference jurors could apply. And there is a practical benefit to thinking both more broadly and more specifically than just “compensation” and “punishment.” In thinking about your own case, it helps to consider the frames of reference that might be most relevant to the story you are telling on damages, either to drive them up as a plaintiff or to drive them down as a defendant. Don’t just address the evidence and the law, address what the jurors might be wanting to accomplish in awarding or resisting that given amount.
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Other Posts on Damage Awards:
- Remember, With Damages It’s the Message and Not Just the Math
- Counter the Plaintiff’s Damages Anchor (Especially When It’s Overboard)
- Expect Jurors to Want to Follow the Money
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