JURORS AND DAMAGE APPRAISALS

One of the better blogs relating to trial issues is The Persuasive Litigator: http://www.persuasivelitigator.com/  Dr. Ken Broda-Bahm recently wrote about jurors and their calculations regarding civil damages in this blog. He notes that a  recent study demonstrated that people on the jury generally move from a story, to a general sense of damages and then to a specific number. It has already been rather well established that offering a number, acting as a psychological anchor, plays an important role in their arriving at  a verdict in civil damages. The question of whether  you should suggest a verdict amount or leave it to the jury has been determined. You should ask for a figure. However, it also appears that in addition to the anchor you offer by way of a number we should also needs give meaningful reasons for it by providing reasons in context.

In this recent study the research team led by two psychologists from Cornell concluded that jurors are most often at a loss to know what number is appropriate. However, they note a number of studies establish a relationship between how bad the injuries are and the amount awarded. In general, the more serious the harm the larger the amount. Certainly, no real surprise for trial lawyers. However, we know from research that suggesting a verdict amount or number acts as a “primer” which influences the final conclusion.  If our damage range is high, the discussions are generally higher than a lower suggested number. The number acts as an anchor for the discussion of the appropriate amount.

What this study demonstrates is that when the dollar amount isn’t simply offered as an arbitrary selection, but is supported by meaningful references it results in a larger amount. Not only were the ultimate awards in the study closer to the anchor but were more predictable when there were meaningful reasons given to support it.

“Meaningful” refers to reasons which were deemed appropriate  to the number  suggested. While this will vary from case to case the important point is that we must do more than just throw out a number. We need to offer reasons why the numbers we suggest are appropriate, reasonable and fair. It is more important that we offer rational explanations for the numbers then the reasons offered. For example, in  the well known research study which involved people lined up at a copy machine and the research team would go to the front of the line asking to  use the copy machine first. In the cases where they gave no reason the request was granted about 60% of the time. In the case where they gave a reason such as they had an important meeting it was granted about 90% of the time. In fact the study showed that the reason wasn’t even important, it was the fact a reason was  given that made the difference. I have referred to this psychological principle as the “magic of the word because.”

Jurors are generally without any experience or education about correlating dollars to harm. They are searching for some one they can trust and reasons they believe justify their verdict because they all want to do the right thing. This is why some have argued that it is a mistake to ask for the bills or economic loss where they are relatively small compared to the verdict being sought. Jurors look for things they can rely upon as a measuring stick and the out-of-pocket loss represents something they can understand and are likely to use as a measuring stick for the general non-economic damages. For example, in a wrongful death case the out-of-pocket loss could be relatively small and it might be  better to waive those costs for fear it would hold down the general verdict.

The lesson for us is to  offer rational reasons for the amounts we argue for in our damage cases. I recommend dividing the damage request into two time periods: past and future. I recommend that these time periods be divided into economic damages and noneconomic damages.  Both periods should be divided into the elements of damages on the non-economic side of the argument. The first advantage is that by breaking the numbers up in this way they are more acceptable than simply putting down one lump amount. I recommend that the non-economic elements be argued from the standpoint of the impact each makes. Physical pain for example is not the same as mental pain. Disability has consequences that are different than the loss of enjoyment of life and so on.

The lesson here is always ask for a figure and always  combine it with reasons for the amount you ask .

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