By: Dr. Ken Broda Bahm –
When dealing with the number of plaintiffs in a class action, mass tort, or other large scale litigation, is “Super-Size Me” the plaintiff’s best choice? At a legal level, the U.S. Supreme Court will get a chance to weigh in, after the decision last week to determine whether as many as 1.5 million female Wal-Mart workers claiming gender discrimination can be certified as a class (Dukes v. Wal-Mart). The common belief is that a large number of plaintiffs serves to maximize the degree of harm that a jury is likely to perceive and amplify the amount of damages that individual plaintiffs receive. But, does the research support it? According to a recent series of experiments conducted at Northwestern University, the answer might well be “no.”
And the question is an important one, as class size and verdict amounts continue to rise in several areas of litigation. For example, Seyfarth Shaw recently released its 2011 Workplace Class Action Litigation Report, and sees the coming year as a potential tipping point for employment class actions. “The value of employment discrimination class action settlements,” the firm’s press release notes, “also increased four-fold in 2010 over 2009, and the top ten settlements of wage & hour, ERISA, and governmental enforcement class actions increased to $1.16 billion, the highest amount ever.” There is a tremendous amount of controversy surrounding the class certification process, and your own view of whether the class action case is a white knight or a flame-breathing dragon probably depends on whether your counsel table is to the right or the left of the judge. Still, one question of interest to both plaintiffs and defendants relates to the persuasive effect that the number of plaintiffs has on a jury’s ultimate verdict, which is exactly the question addressed in the Northwestern research.
One motivator underlying the trend for more and bigger classes is not only the added efficiency of trying cases en masse, but also the presumed persuasive impact of a “bandwagon” appeal on a jury, with a resulting increase in awarded damages. The research, however, points in a different direction. For example, in 2000, Horowitz & Bordens conducted a study that varied the number of plaintiffs in simplified case descriptions, finding that while increasing numbers of plaintiffs tended to increase the likelihood of finding liability, the amount of damages awarded to each plaintiff peaked at just four plaintiffs. Simply put, adding plaintiffs to the description tended to reduce the amount that individual plaintiffs were awarded.
That result is confirmed in a more recent study published this past summer. Nordgren & McDonnell (2010), conducted two studies that found that increasing the number of individuals harmed served to decrease the perceived severity of the harm itself. In other words if more people suffered, then — counter-intuitively — the act that caused this suffering was judged to be not as bad. The researchers conducted these studies in a criminal fraud context, looking at the number of individuals who were victims of the same crime, but the results easily extend to the number of individuals harmed by a company’s behavior. In fact, the authors also conducted a third study looking at archival data of ten years of civil jury verdicts in the toxic tort realm and found that when a company’s actions harmed fewer people, the juries awarded higher punitive damages.
Calling this the “Scope-Severity Paradox,” the authors raise the obvious question: why on earth would mock jurors judge the greater harm to be less harmful? The answer has to do with identification, summed up in Vladimir Lenin’s quotation, “one death is a tragedy, one million is a statistic.” Simply put, there is less victim-identification in aggregate conditions. It is harder to identify with even one hundred than it is to identify with a few. But not only may a smaller number of victims encourage more identification with specific victims (making it personal rather than abstract), but the harm itself may be seen as more of an exceptional event and hence, more tragic when it effects fewer people. For example, one interesting study in the realm of counterfactuals showed that when study participants evaluated a traveler who had switched flights at the last minute, they judged his death to be more tragic than the deaths of the other passengers on the same flight (Miller & Turnbull, 1990). Events which are exceptional, deviations from the norm, provoke the strongest reactions. When a few people are harmed, jurors can see it as more of a deviation and hence more of a harm.
So how should this research factor into the decision-making of those litigating or managing class action cases? A few ways:
1. Don’t assume the advantage or disadvantage. It makes no more sense for plaintiff attorneys to presume they have a great case due to large numbers in their class than it makes for defense attorneys to presume they don’t. Plaintiffs shouldn’t relax on the band-wagon, so to speak, but should fight all the more for damages, and defendants should understand that as they face increasing numbers of claimants, they are also facing adversaries who bear a higher burden.
2. Plaintiffs should personalize claimants as much as possible. As Nordgren & McDonnell (2010) note, “Our findings emphasize the important psychological role that salient accounts from individual members of harmed populations can play in helping others to grasp the severity of mass crimes” (p. 6). In the Wal-Mart case, for example, jurors may come to identify with the struggles of the class by becoming familiar with the challenges of one or two women.
3. Defendants should think carefully about efforts to exclude information and limit plaintiff numbers. While the effect is likely to differ from case to case (an excellent reason to conduct one or more mock trials), the studies cited here indicate that there might be an “abstraction advantage” to larger plaintiff classes, as well as an “identification disadvantage” to smaller ones.
The bottom line, is that plaintiff attorneys’ best reasons for aggregating clients probably relate more to efficiency and an increased likelihood of settlement than to the ability to magnify individual damages. Though for the actual plaintiffs who have a choice between pursuing individual claims and becoming part of a class, the effects of aggregation on their own award may be a consideration. But importantly for defendants, the fear that plaintiffs will ratchet up damages by bandwagon effect alone is probably unfounded.
Loran F. Nordgren and Mary-Hunter Morris McDonnell (2010). The Scope-Severity Paradox: Why Doing More Harm Is Judged to be Less Harmful Social Psychological and Personality Science
Irwin A. Horowitz, and Kenneth S. Bordens (2000). The Consolidation of Plaintiffs: The Effects of Number of Plaintiffs on Jurors’ Liability Decisions, Damage Awards, and Cognitive Processing of Evidence Journal of Applied Psychology, 85 (6), 909-918
Miller, D.T. & Turnbull, W. (1990). The Counterfactual Fallacy: Confusing What Might Have Been With What Ought To Have Been Social Justice Research, 4 (1), 1-19
Photo Credit: Rich Moffitt, Flickr Creative Commons