By Dr. Ken Broda-Bahm:
How many times have you heard that a jury — especially a jury that is deliberating about damages in a civil case — is about as predictable as the lottery? The broad perception is that as jurors arrive at figures in the deliberation room, they’re essentially throwing darts at a dart-board. Watching a mock trial can often reinforce that notion since mock jurors, especially based on the limited information they’ll often receive in a research exercise, can be pretty casual about how they consider and ultimately pick numbers. You can treat jury’s damages process as the ultimate ‘black cashbox.’ Experienced trial lawyers, however, know that there is a lot you can do to guide jurors in the direction of your preferred numbers. And recently, the social science is adding some foundation to that belief.
In a recent article published in Law & Human Behavior (Reed et al., 2024), a broadly experienced team of academics conducted a study focusing on the ability of jurors, both individually and as members of deliberating groups, to come up with valid and reliable numbers in response to a recorded personal injury trial. They found solid evidence showing that people could achieve that, but also that several factors — including clear guidance from counsel — contributed to that ability. In this post, I will take a look at the research as well as at four practical implications of the study.
The Research: How Well Do Juries Handle Civil Damages?
The research was aimed at skeptics of the jury system who see a jury’s practices on civil damages as being particularly unknowable and unpredictable. Using a total of 317 participants, researchers had the individuals review a short video-recorded trial focusing on an automotive collision resulting in a concussion. Varying a number of conditions, the concussion was either mild or severe, and the plaintiff’s attorney provided no guidance on damages, or a suggested per diem process (considering the value for an hour of suffering and multiplying), or a per diem plus a suggested lump sum. The research participants provided their answers individually, and then deliberated as a part of 54 mock juries.
The study found that the jury awards reached quantitative benchmarks on validity (mild and severe injuries were distinguished, with the latter receiving higher damages) and reliability (with numbers being broadly consistent across individuals and groups). They also found additional support for the observation that jurors follow a recognizable path in deciding on damages by settling on a “gist” of the damages (e.g., being “high,” “moderate,” or “low”) before mapping that gist onto a specific number. But most importantly, they found that attorney guidance as well as the deliberation process helped jurors arrive at consistent and valid numbers.
The Implications:
When assessing your case or preparing for trial, I think there are a few implications that stem from this study and the related research trends.
Juries Work
The stereotype is that juries can be wild, unpredictable, and unprincipled when it comes to awarding other people’s money. The jurors themselves will often say that it is difficult to assign a dollar amount, particularly when dealing with intangible non-economic categories. So in that context, it is important to note the study’s finding that individuals and deliberating juries do better than we think on civil damages. “These findings offer some reassurance to individuals who are concerned about the quality of jury damage award decision making,” the researchers conclude. “They show that jurors and juries differentiate injuries reasonably well and in line with the evidence and that they arrive at damage awards that align with injury severity.”
Guidance Works
Based on the study, the damage amounts awarded became much more predictable when there was guidance on preferred numbers in closing. The researchers in this case manipulated the plaintiff’s requested ad damnum process and amounts, so that guidance served to substantially increase the requested amount. While they did not test the effects of a contrasting defense counter-anchor and process, there are reasons to believe, based on past research, that such counters serve to hold the numbers down. In short, attorneys should do what you can within the rules to talk about the number you would want the jury to get to as well as their process for getting there.
Deliberation Works
One weakness in the social science on damages is that much of the prior research has focused on individual assessments rather than on deliberating juries. In the current study, however, they focus on both. That is important, because while group deliberation is influenced by the average of individually-preferred numbers, the group result turns out to not just be the mean or the median. Instead, the groups in this study and previous studies have been observed to “polarize” their result by moving it further in the direction of whatever the majority ends up supporting, with resulting group verdicts being more extreme in both directions than the individual awards would predict. This adds to the reason why your mock jury research can’t just rely on individual results, even with a larger sample size, because the result of a deliberating group will be different.
Meaningful Numbers Work
A final implication is that it helps when the attorney guidance is grounded. The studies on anchoring show even the introduction of a random number will influence the ultimate result, but for jurors the use of a meaningful number or a meaningful process for getting at a number will work better. In this study, the researchers found that an attorney suggesting both a lump sum number as well as a per diem process for getting to that number was the most influential in guiding a reliable final verdict. The per diem suggestion is not allowed in all jurisdictions, but the key for the jury is that you are able to give them something concrete on how they would get to a result that feels appropriate.
Ultimately, there will still be unpredictable elements to what your jury does, and that is especially likely when it comes to damage amounts within categories that are subjective, but when a great deal is riding on your ability to reliably value your case, and your ability to prepare a message for trial, you want it to be as predictable as possible.
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Other Posts on Damages:
- Ground Your Noneconomic Damages Anchor
- False Promises: Answer the Plaintiff’s Damages “Pre-Commitments” in Voir Dire
- Defense Damages Counter-Anchor: Get Them to Calculate, Not Speculate
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Reed, K., Hans, V. P., Rotenstein, V., Helm, R. K., Rodriguez, A., McKendall, P., & Reyna, V. F. (2024). The power of meaningful numbers: Attorney guidance and jury deliberation improve the reliability and gist validity of damage awards. Law and human behavior, 48(2), 83.