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How Will My Jury Arrive at Damage Figures?
The Advantage: 4.06: V.3, 1st edition
The sheer amount of information that jurors are asked to process in a trial is daunting for even some of the most sophisticated minds. Fortunately, humans seem to be pre-programmed for such tasks in their ability to cognitively store information by placing it into manageable categories, known as schemas. The most salient or influential schemas tend to be those that stem from concrete personal experiences. The sum of one’s past experiences creates a prototypical schematic experience or norm, which in turn, functions as a frame of reference for understanding and interpreting new information. For example, a juror evaluates the credibility of “the boss” on the witness stand in an employment case by drawing upon past experiences with his or her own managers and supervisors. Drawing upon these past interactions allows one to determine whether the witness fits his or her image of the boss and consequently, construct attitudes towards the witness based on comparisons to his or her own personal experiences. Essentially, it creates a base-point reference. Jurors who have had bosses that they felt abused their power are more likely to be persuaded by the plaintiff’s frame that the manager on trial is the type of person who would wrongfully terminate the plaintiff simply because he did not like her.
Most people intuitively understand the role that schemas play in processing information from our day-to-day experiences. However, we may be overlooking an even more influential role that schemas play in our assessment of legal disputes. It is here that schemas may impact the manner in which compensatory damages, particularly non-economic, are awarded in personal injury cases.
Despite popular criticism of damage awards in personal injury cases, most research has shown that jurors arrive at damages quite rationally, basing them primarily upon the severity and permanence of the injuries sustained during an accident. This research reaches its conclusions by comparing damage awards to severity, permanence, and other factors across a wide range of cases using a variety of statistical methods. However, the research falls short as it does not offer insight into how jurors arrive at damages for a particular injury within a particular case. One way to do so could be by analyzing the degree to which the event and injuries in question match jurors’ schemas for such an event.
A recent study conducted by members of the psychology department at the University of Iowa showed that people tend to have schemas for common accidents involving personal injuries. In this study, participants were given vague scenarios that led to personal injuries, including automobile accidents and defective products, and were asked to describe what they believed would be the likely causes and resulting injuries. The results indicated that accidents with which a person has experiences tend to produce similar and more consistent descriptions of likely injuries and causes. For example, in the scenario of the automobile accident, participants consistently described the injuries as including whiplash and head injuries. Additionally, participants had common explanations for how the accident occurred despite the lack of any specific details being offered. This establishes the notion that jurors do have expectations for what should occur in a particular kind of accident.
Conversely, results also showed that there was much greater variation in descriptions of likely injuries and causes of accidents for scenarios that tended to be less common to the typical person’s experiences. These included injuries sustained from defective products and medical malpractice.
These results have several implications. First, familiar accident scenarios involving injuries that match jurors’ schemas will lead to greater consistency in damage awards across similar cases, allowing greater predictability of damages for the parties involved. Second, familiar accident scenarios involving injuries that fall further outside of the jurors’ schematic range for that accident will likely lead to greater skepticism of the plaintiff’s claims and, consequently, less predictability in terms of damages. Third, one can expect less predictability and greater variability in damage awards across cases involving unfamiliar accident scenarios. Finally, limited data suggests that unfamiliar accident scenarios tend to produce higher damage awards. A possible explanation for this is that juries hold greater sympathy for victims of unusual accidents as opposed to accidents that are perceived as common to the human experience. An implicit premise of this explanation is that accident scenarios that are more common to the personal experiences of most jurors are viewed as being less severe in nature.
Strategies stemming from this analysis can be highlighted for both the plaintiff and defendant. For the plaintiff, studies show that damage awards tend to be higher when injuries are atypical of a given accident category. This suggests that an advantage exists for plaintiffs when they can successfully differentiate their client’s injuries from those that are “typical” of the particular accident category in question. Otherwise, juries will think, “This is just another case of whiplash,” or “It’ll be a nagging back injury but it’ll eventually go away because mine did.” This creates a lack of motivation for jurors to work for the plaintiff in the area of damages. Our own qualitative jury research has observed this phenomenon in a variety of cases. Plaintiff’s counsel will want to convey the uniqueness of their client’s injuries or circumstances so that the jury finds higher damage awards.
It is important to add that a fine balance must be struck. Injuries that depart too significantly from those that are typical of the accident category can create skeptical juries. For example, one recent case involved an individual who became severely ill from consuming food from a restaurant. This illness was so severe that the plaintiff will likely experience medical problems for the rest of her life. During mock trial deliberations, our consultants consistently heard jurors remark: “I’ve had food poisoning before and it wasn’t that big of a deal” or “I just find it hard to believe that food poisoning could have caused this.” The implicit contention in these statements is that the injury sustained does not match what is typical for most people; therefore, jurors found it too difficult to establish a causal connection. Jurors’ skepticism resulted in these mock juries altering their damage awards to make them more consistent with their expectations of what should have happened, or likely happened, in this particular case.
Success in such cases requires a clear, comprehensible explanation of why the injuries depart from what is typical for such an accident. This might be a difficult task for the plaintiff’s attorney. Remember, personal experiences create very intractable schemas for jurors, making it more difficult for them to accept what they consider to be abnormal. Consequently, plaintiff’s attorney must establish the story of the client’s injuries as unique, yet reasonably obtainable within the circumstances of an accident of that type. This will necessitate a carefully considered rhetorical strategy by plaintiff’s counsel that draws upon the reasonability of a common experience. The focus of such a strategy should highlight the factors that differentiate the circumstances of the incident from those that are typical rather that focusing primarily upon how the resulting injuries are different from the typical incident.
For the defense, damages may be brought under control by shifting the conceptual scope of plaintiff’s injuries back under the umbrella of schemas for the accident category in question. The goal here is to get the jury to find that there is nothing especially necessary in terms of relief for the injuries sustained. Issues of severity and permanence are two areas that should be called into question either directly or indirectly considering evidence cited earlier that indicates juries arrive at damages by examining these same factors. In doing so, there are a few possible outcomes. First, the jury may believe that this is just another instance of a common accident with a corresponding common injury. In this case, when the jury fails to find anything especially unique about the plaintiff’s circumstances, they will lack the motivation to aggressively compensate the plaintiff. In instances where the injuries of the plaintiff do not match the schemas of the jurors, jurors might reject the possibility that the injuries were caused by the defendant.
Another possible outcome is that jurors may identify the incident with one that they have personally experienced either first-hand or through a family member or friend. Often, we find that jurors do not feel compelled to award damages to a plaintiff when they or someone they know did not receive relief for a similar injury. While the likelihood of no damages being awarded is very low, this does keep the overall figures lower than what would otherwise be reasonably expected.
Overall, most readers are unlikely to be surprised by the notion that personal experience plays a significant role in jurors’ conceptualization of issues at trial. Most attorneys are well aware of this. However, discussion of this relationship typically occurs within the context of determining liability. Instead, expanding the application of this relationship to cover determinations of damage awards may yield greater strategic options for both the plaintiff and defendant in anchoring damage figures.
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