To better gauge damages, get to know your jury

When it comes to analyzing a jury's determination of damages, everyone has a theory. After all of the expert preparation, conjecture and plain guesses, in the end jurors often decide according to no formula, with the exact number virtually unpredictable.

You disagree? You say you know where a jury will land? Sometimes you can guess right because "somewhere in the middle" works. But is that helpful with your trial date bearing down? Is the risk high or low? Is somewhere between $0 and what the plaintiffs are asking for palatable?

The truth is that jurors use many factors to determine a damage award, some known and some unknown. It is the unknown that creates problems because we don't factor that into our analysis. We can't. Even the seemingly simplest person is a complicated mix of life experiences, attitudes and beliefs, all of which determine that person's ability to be reasonable, view evidence in your favor, put emotion aside, and agree that $10 million is a lot of money.

Although we can't know exactly what a juror or a jury will decide, we do have insights into the process they go through during deliberation. Based on 20 years of experience with mock trials, as well as many post-trial interviews of actual jurors, I have noticed some patterns that have emerged.

Let's use an injury or wrongful death suit as our benchmark case. That allows room for more emotion and experience to enter the picture.

In addition, let's assume a plaintiff's verdict. High- versus low-damage jurors are not exclusive to verdict orientation; there certainly exist plaintiff jurors who are the low-damage type.

1) Jurors go back and forth to get a feel for each other about general amounts.

Let's say that the plaintiff has asked for $1 million in economic damages and $5 million in non-economic damages. The first exchange usually involves a juror commenting about the "unreasonable amounts" the plaintiff is seeking. That's the juror's way of telling the group that he or she is unwilling to award that much, so the discussion needs to go down from there.

Sometimes there's agreement, sometimes not, depending on the venue, the injury and other factors. But the first part of the discussion is generally about high versus low and what something ought to be, and that sets the tone for the rest of the discussion. Consider it boundary-setting or getting a feel for how everyone compares.

Sometimes, the first juror to speak is one who wants to award it all (or is all worked up and wants to "punish" the defendant), but I find that person speaks up infrequently. Jurors who are against large damage awards generally feel strongly about it and speak first - in other words, they have an invisible line in their mind that they don't want to cross. That becomes important later, so we'll come back to the point.

2) Part one focuses on overall awards; part two begins with specifics.

After some degree of general high-low speak, sometimes involving specific injuries and issues, someone turns to the specific damage questions in order to start breaking it into smaller amounts and values. While jurors first focus on overall awards, in the second phase they address distinct categories: medical, lost wages, pain and suffering, etc.

Of note here is that jurors find specific numbers more credible for plaintiffs. For example, a plaintiff who asks for $1,133,400 in economic damages is often viewed more favorably than one who asks for $1.2 million. Conversely, defendants are sometimes seen as nitpickers when they offer specific numbers and are better off offering a round number as an alternative, when appropriate, such as $1 million for economic damages. When plaintiffs rounds up, they are perceived as increasing their own pot of gold, because no medical bill is a clean number.

Returning to specific values, when jurors begin to break it down, the "low" juror I mentioned previously comes back into play. While these jurors often have a line they won't cross, it isn't always tied to specific awards; in other words, if a juror thinks a case is worth no more than $1 million, he or she does not necessarily parse out between pain and suffering and economic damages. As long as the imaginary line is not crossed, the juror isn't particular about which bucket the money goes into. Ultimately, he or she may be more willing to horse trade if it means the overall award can be kept lower: "I will award the whole amount for past medical and lost wages but only 25 percent of what they asked for in non-economic damages."

More emotional jurors who might be high-award jurors are more particular. In mock trials, those are the jurors who spend comparatively more time talking about quality of life and the horrific nature of the injury.

3) Part three of a damages discussion is about extraneous considerations.

The "high-number" juror will mention attorneys' fees, arguing that the jury needs to award more because the lawyers will take a lot of the award. Sometimes the discussion goes away quickly, sometimes it gains momentum, but it almost invariably comes up as a way for the high-award jurors to try and persuade low-award jurors - usually unsuccessfully - to increase their awards.

4) When jurors disagree about amounts, they usually settle on a midpoint.

Admittedly, the above point might be more common in jury research than in a real trial, because jury research exercises lack a lot of the damages data present in a trial (assuming the exercise is not a specific damages study). It is the easiest way to get the group to agree because it seems "fair" to everyone. It also goes to jurors' inability to persuade others in the group.

Persuading others a la "Twelve Angry Men" is a real skill that few jurors have. In a short mock trial deliberation in which the clock is ticking, jurors are more invested in finishing the discussion than getting the damage figures exactly right. In a real trial, jurors have as much time as they need to gather allies to their positions. Therefore, averaging and settling on the midpoint is perhaps less common. But it certainly still happens.

5) Alternative damage offerings are complicated.

Jurors use them differently, and they are often case dependent. In other words, the facts should determine a defendant's strategy on this point.

It is vital that you try to understand a juror's attitudes about damage awards before you seat your panel. There are many questions to ask, and there is a distinct profile for punitive jurors.

Of course, litigators know all too well that even the juror who seemingly fits a certain profile perfectly can surprise us in the end. But with some insight into the common patterns of damages discussions, counsel can strategize ways to address the issue of damages early on, rather than belatedly scramble to adjust.

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Julie Campanini is the founder and principal at Trial Insights. She can be reached at Julie@trialinsights.com.

Published: Wed, Mar 04, 2015

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