By Dr. Ken Broda Bahm:
There is one topic that nearly always comes up in mock trial discussions: the McDonald’s hot coffee case. It can be a circumstance as distinct as a patent case, and at least one juror will somehow find a connection. When the discussion turns to damages — and especially punitive damages — there is another topic that makes an appearance nearly every time: the question, “Where does the money go?” One juror in a real trial took that a little too far recently. During deliberations in a sexual harassment trial, St. Louis juror Kevin Hink used his phone to ask Google, “Where do punitive damages go?” Wikipedia was ready with an answer: The plaintiff would receive “all or some portion” of it. Apparently, this jury was happy with that answer, because they then awarded her $7.2 million, an amount that naturally is now in jeopardy.
Juror curiosity is natural. But this frequent question about the use of damages money reflects a broader issue with the way jurors think about their awards. Technically, of course, they are just answering a question that the law poses. In practice, however, jurors are more likely to see themselves as taking an action. That action is taken under the color of law, but the effect is to accomplish something for the plaintiff or for society. When damages are viewed as an action and not as an answer, jurors’ questions make more sense. Obviously, it is not always possible for litigators to address these questions without objection. But by keeping these questions in mind, and addressing them where possible, litigators on both sides are able to present jurors with a more complete picture, and that makes for better persuasion.
What Is the Foundation for a Damages Number?
When dealing with compensatory damages, the foundation is clear. But the further we get outside that tangible connection to bills-to-be-paid, the more speculative it can get. This is nowhere more evident than in the case of punitive damages. While attention often focuses on the huge “blockbuster” awards (Del Rossi & Viscusi, 2010, PDF download here), the more common view is that punitive damages tend to be relatively rare. And they are awarded only around three percent of the time. However, when researchers (Eisenberg, Heise & Wells, 2010, PDF download here) looked at the number of times punitive damages are obtained in relation to the the number of times they are sought, they end up being more common: Punitives are obtained in about 30 percent of the plaintiff trial wins in cases where punitive damages are sought, and in intentional tort cases or cases with compensatory damages over a million, that success rate climbs to 60 percent.
Litigators reading that might be surprised the number is so high, thinking that jurors tend to be allergic to numbers they can’t tie to a concrete foundation. But frequently enough, jurors do get there. And when jurors are able to get outside the cut-and-dried numbers, there is more of a chance for psychology to play a strong role in that determination, and to strengthen that foundation. Selected numbers, like those found in the compensatory categories, can serve as an anchor. Motivations might be found in community values that are seen as being under attack. Or a simple desire to exact revenge can also make jurors more comfortable with a higher number. Those are all important considerations, but boiling it down, I think there is one fundamental question that ought to be kept in mind.
The Questions to Answer (or Hint at): What Do Dollars Do?
In criminal settings, the utility of the outcome is clear. Side with the prosecution and you’re helping to remove a danger from society. Side with the defense and you’re protecting liberty by holding the state to a high standard of proof. In civil cases, the utility of the outcome can be murkier. Instead of righteous clarity, the civil result from a jury’s perspective can just look like dollars passing or not passing from one hand to another. To the law, those dollars are a measure of the verdict, making the party whole in order to compensate for a loss caused by breach or by tort. But to jurors, those dollars should have a purpose other than ‘justice.’ What the dollars do is usually clear enough for compensatory damages. In other areas, not as much. Dollars cannot alleviate pain and suffering. But maybe, jurors speculate, it can pay for therapy, or it can simply make life easier in other ways that might compensate. Through testimony where it is allowed, or through implication and the overall story where it isn’t, plaintiffs do better if they can find a way to tell jurors about the work that will be done by all categories of damages they are seeking.
For defendants, the goal is to look at how that work can be done in alternate ways, without rewarding the plaintiff. For example, a defandant’s alternate damage number represents the same work being done with greater efficiency. Showing that the plaintiff can be made whole through a reasonable result on the compensatory categories alone, drains away the motivation to add to that amount through other categories. In a medical malpractice context, one intriguing question at this point is what effect the Affordable Care Act will have on damages. While insurance information generally cannot be introduced, in the past, jurors have assumed that a severely injured plaintiff is uninsurable and that made jurors more comfortable with the knowledge that they’re being asked to award the full amount for care. Now, however, jurors might reason that the plaintiff has legally guaranteed insurance coverage and, therefore, only needs the premiums going forward. That is one example of jurors not just thinking about dollars, as if they’re only putting them up to equal the wrong on the other side of the scale, but instead looking at what those dollars will do in practice.
______
Other Posts on Damages:
- Spot the Jurors Who Feel Entitled to Award Higher Damages
- When Arguing Damages, “Drop Anchor” Even in Murky Waters
- Get the Gist of How Jurors Decide Damage Numbers
- A Mixture of Justice and Revenge: Target Juror Psychology in Awarding Damages
______
Del Rossi, A. F., & Viscusi, W. K. (2010). The Changing Landscape of Blockbuster Punitive Damages Awards. American law and economics review,12(1), 116-161.
Eisenberg, T., Heise, M., Waters, N. L., & Wells, M. T. (2010). The Decision to Award Punitive Damages: An Empirical Study. Journal of Legal Analysis, 2(2), 577-620.
Image Credit: Kieth Ramsey, Flickr Creative Commons