By Dr. Ken Broda Bahm:
When your jury returns a verdict, who is actually speaking? Literally, of course, it is the foreperson speaking for the six to twelve on that jury. But more broadly, it is also the six to twelve speaking for the community. In some form or another, those individuals are reflecting the community’s priorities: what is assumed, what is valued, what is rewarded, and what is punished. A recent article in the William and Mary Law Review focuses on this community influence. Cornell Law Professor, Valerie Hans (2014) begins with an earlier article (Solomon, 2012) that I also blogged about. That article, by William and Mary Law Professor Jason Solomon, argued that the American jury fails to fulfill its role as a political institution because it is predominately used as a means of settling private disputes and only rarely serves as a check on governmental power. Add to that the jury’s inherent unpredictability, Solomon says, and you have a jury that is less likely to live up to its role within our democracy. In contrast to Solomon’s skepticism, Hans argues that the jury does serve as a voice of the people, and further stresses one point in particular where a jury’s ability to convey community values matters most: damages. “The dollars that juries award, from the compensatory amounts they grant to auto accident victims to the punitive damages they deliver against large corporations,” Hans notes, “are very much products of community views and sentiments.”
That doesn’t, however, mean that those views and sentiments are easily predicted. Awarding damages is a very ambiguous task, with little guidance in the law other than being “fair” and “reasonable” in “fully compensating” or “making whole” the defendant. With true academic understatement, Hans observes that “the qualitative sense of the severity of an injury or the outrageousness of the defendant’s behavior is not perfectly translated into quantitative judgments on the dollar scale.” Still, there is a general consistency with worse injuries leading to greater damages and vice versa. While critics suggest that juries seem to be pulling numbers out of the air, mock trial observers know there is a rough method to their calculations. And understanding the links between community characteristics and damage awards can help you understand that method.
Who Speaks Through the Jury?
In a comprehensive and well-cited article defending the jury’s political role as the voice of the community, Professor Hans finds confirmation in the fact that jurors’ political and social values are strongly correlated to damages. She also notes research showing that communities with different baseline political and social views also strongly differ in damage awards. In laying out this argument, Valerie Hans provides a useful overview of a number of attitudinal tools that show these differences, like the Business Attitudes Scale (do jurors have a free or restrictive attitude toward business?) and the Litigation Crisis Scale (to what extent do jurors believe that there are too many lawsuits?). She also refers to Persuasion Strategies’ own Anti-Corporate Bias Scale.
These tools, along with many others, show the way that community attitudes play a role in determining how a particular jury will respond to this case. In the case of damages in particular, Hans reviews three ways that jurors evaluate injuries and decide whether damages are low, high, or appropriate.
Jurors Make the Story
The widely popular story model of jury decision making suggests that jurors will construct a story out of evidence, evaluate that story, and then select the verdict result that best comports with that version of reality. Stories inherently draw on community knowledge and beliefs, and damages are a measure of the degree of wrong and harm that is perceived at the center of that narrative.
Jurors Get the Gist
I’ve written previously about the gist theory of how jurors decide damages. That approach recognizes that juries employ a loose but not random system for arriving at a number. They attach meaning to different figures, anchoring on a figure mentioned in a case, or just gravitating toward the “nice round number.” The damage determination comes out, not by calculating precisely, but by getting the gist of a number that in context feels like not too much and not too little: just right. That ‘Goldilocks Standard’ will inevitably be shaped by community circumstances, attitudes, and values.
Jurors Apply Cultural Cognition
Previous posts have also drawn from the work of Dan Kahan and the Yale Cultural Cognition Project. That line of research has focused on the role of motivated reasoning in leading people to create and maintain beliefs. Those beliefs begin with perceptions within your community and your reference groups. Drawing from these culturally-derived cognitive starting points, jurors will decide based on an injury or wrong whether proposed damages are low or high.
Address the Community When You Address Damages
This discussion on community influences on the jury is admittedly a little abstract and theoretical. The practical question is how litigators should react to the community’s role in a jury’s thinking. Obviously, the direct audience to persuade is the jury in the box. Still, litigators will have an interest in understanding and drawing upon community influence. Here are a few steps:
1. Find Out What Your Community Thinks
The community attitude survey is a service offered by most consultants. It involves administering a questionnaire to a broad and randomly-selected cross section of your community, usually by telephone or online. Not to be confused with a change of venue survey, the goal of the community attitude survey is to discover baseline beliefs and attitudes that serve as a foundation for voir dire and case presentation. As a service, it tends to be relatively inexpensive. but it is also underutilized. I believe litigators tend to be less enthusiastic about an attitude survey based on the thought that “these people won’t be the ones on my jury.” True, but they will be important representatives of those who are. The opportunity to ask detailed questions — often more detailed than what is permitted in voir dire — can provide a critical reality check on the community values that your real jury will likely bring to trial. It is not a certain predictor, but it can be a good starting point.
2. Link to Community Values
No individual is a perfect representation of community values. But as a group, it is undeniable that individuals absorb and radiate the values of their groups. One example of this consideration at work in litigation is the Reptile perspective on plaintiff’s persuasion. Narrowly, the view is that people act to protect their own security and that of their offspring. But extending that circle, people will also act in ways that protect their community, because the safety of the ‘tribe’ is another form of personal security. That means that the Reptile approach can rely not just on individualized appeals (In effect, “You or your loved ones could be harmed by unsafe products like this“), but also on community cohesion (In effect, “Your group’s norms and values are threatened by actions like this”). Linking your case story to the values likely to be upheld in a given community can be an effective way of making a security-based appeal, even when your case story doesn’t involve an immediate physical danger.
3. Use Meaningful Numbers
Damage numbers aren’t often the product of clear deductive reasoning, particularly when they are punitive or in broad categories like pain and suffering. But one point the Hans article covers strongly is the fact that amounts do not have to be empirically derived in order to be meaningful to jurors. And making the numbers meaningful is a way to make damages results more predictable and controllable. One familiar example Hans refers to is the Liebeck v. McDonalds case involving injuries caused by a hot coffee spill. In that well-known situation, the jurors awarded an amount, $2.7 million, that equaled two days of McDonald’s coffee sales. The number can become meaningful for substantive or symbolic reasons, but either way, that number will serve as an anchor for their thinking. And damages are more predictable when you consider the anchor (where do they start?), as well as the motivators (what leads them to push up, pull down, or compromise?).
The bottom line is that juries are still messy and inexact. But juries enact their role in our political system precisely by bringing that messiness and inexactitude to the process. But that does not make it a coin flip. Paying attention to the community values that jurors bring to their role is an important step to understanding their decision making and improving your persuasion.
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Other Posts on the Political Role of Juries:
- Consider the Jury’s Political Role
- Don’t Pull the Plug on the American Civil Jury Just Yet
- See the Process and Not Just the Product in Deliberation
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Hans, V. P. (2014). What’s It Worth? Jury Damage Awards as Community Judgments. Wm. & Mary L. Rev., 55, 935-1241.
Image Credit: Ryan Poplin, Flickr Creative Commons