By Dr. Ken Broda Bahm:
The damage amounts awarded by civil juries can sometimes seem to be random or capricious. Lawyers and insurance representatives arguing for a settlement will sometimes call it a “crap-shoot.” It is true that there is no precise predictability to it. When you have a chance to see mock jurors deliberate on damages, you will sometimes see numbers casually raised or dropped on what can seem like a whim. And in both mock and real trials, the jurors often complain that translating non-economic factors like pain or disability into dollar amounts is difficult or even impossible.
Damage verdicts can seem to be a bit of an unguided missile. But both experience and research suggests that jurors are following a process, and attorneys can in some ways guide that process. A recent study from a Cornell University team (Hans et al., 2022) adds to a considerable body of support for the view that there’s a method to the madness. The Hans-Reyna model (named after lead authors and Cornell Professors Valerie Hans and Valerie Reyna) posits that jurors deciding on numbers move through a series of steps. First, they will make the categorical decision of whether damages are warranted or not (a “yes,” or “no” decision), then they will make the ordinal decision regarding the scale of those damages (a “low,” “medium,” or “high” decision), before finally making the numerical decision of mapping that previous decision, also called the “gist,” onto a specific number. While that last stage is difficult, the previous stages are a lot more predictable.
In this study, the researchers looked at a scenario involving low or high injury severity in a sports concussion case and asked participants to make pain and suffering awards with and without guidance from the attorneys. They found that guidance from attorneys, particularly guidance that offered both a verbal justification of where damages should be on the ordinal gist scale (“low,” “medium,” or “high”) as well as a suggested number (an ad damnum request) reduced the variability of the damage awards, particularly in the case of severe injury, and gave jurors a better sense that they had guidance and greater confidence in their decisions. Ultimately for the fact patterns tested, the attorney guidance did not independently affect the gist judgment (because jurors were readily able to make those determinations on their own) but did strongly affect that final step of mapping a number onto that gist judgment. “Jurors appear to be getting the gist,” they conclude, “but they are looking to the attorneys to help them in the struggle to assign numbers.” In practice, it may be that the attorneys’ guidance on the scale did not matter because the distinctions between high and low severity were clearly baked into the fact patterns they tested. In cases with greater nuance, that framing from the attorneys on where the damages ought to reside on a scale from “least” to “most” is likely to matter much more. In addition, the implication is, whenever allowed, it helps to give those jurors a number.
Giving Jurors the Gist
The researchers drew their content on a scale for describing damages from the litigation consultant David Ball (in his well-known book, David Ball on Damages, 2011). Writing to Plaintiffs, Ball encourages the use of scales to push perceived scenarios from “low” to “medium,” to “high,” and to attach a number to that level if the venue allows it. Giving a number provides an anchor, a highly influential starting point for jurors to use when arguing over damages. Anchoring works even when it is just a number without basis, but the research also shows that meaningful anchors are better than meaningless ones. So it helps for attorneys to address the gist, or to give reasons why this injury is “high” compared to other injuries the jurors might imagine.
And this is not just a tactic for plaintiffs, since defense attorneys can also argue for a lower gist judgment, and offer a lower anchor. In some of the scenarios the researchers tested, the use of attorney-guidance reduced the perceived severity of this injury and that reduced the overall damages awarded.
One practical point is that, based on David Ball’s writings, there is a simple template that both sides can use in order to provide a sense to jurors of what the gist of their damages should be. That template is based on three easy questions:
How Bad Is It?
How severe is the injury in a relative sense? How does it compare to other injuries jurors might be familiar with? What distinguishes this injury from less severe injuries on the one hand, or more severe injuries on the other? The plaintiff will want to maximize the injury with words like total, serious, devastating, or cruel, while Defendants will minimize it with words like partial, mild, inconvenient, and moderate. The testimony of a doctor or other medical expert on how this injury stacks up against others she has seen can be particularly effective in setting that gist.
How Long Will It Last?
What is the duration of the condition that the jurors are basing compensation on? Is it something that has already begun and ended, or will it be on-going? Defendants will want to emphasize that the pain or injury was temporary, or short-term, while plaintiffs will want to stress the aspects that are uncertain, long-term, or permanent. Where allowed, it may help plaintiffs to apply a calendar to the calculation.
How Much Does It Interfere with Life?
How far is the plaintiff from a normal life? That scale might range from a plaintiff’s emphasis on an absolute loss of normal life (i.e., a complete incapacity or wrongful death) to a defendants emphasis on a minimal deviation (an inconvenience, or a full recovery). Plaintiffs (and defendant too, sometimes) rely on “Day in the Life” videos and/or testimony in order to provide jurors with a more concrete understanding of how a person might be affected by an injury or a loss. Defendants can also point toward a positive emphasis on a plaintiff’s capacity and determination in order to show how an injured party can survive or even thrive.
Outside the context of your specific case, these concepts are going to be abstract. But in the more concrete context of your fact pattern, answering these questions is critical, particularly when those answers are aimed at the jurors’ questions of “What makes the injury in this case more or less severe?” and “What justifies the numbers being suggested by both parties?”
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Other Posts on Damages:
- Ask What Jurors Are Trying to Do with Damages
- Learn What Motivates Punitive Damages
- Normalize Your Damages: Five Ways
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Hans, V. P., Reed, K., Reyna, V. F., Garavito, D., & Helm, R. K. (2022). Guiding jurors’ damage award decisions: Experimental investigations of approaches based on theory and practice. Psychology, Public Policy, and Law, 28(2), 188.
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