The Good, the Bad & the Ugly: How Jurors Translate Views on Liability into Damages

As jury consultants, one of the most commonly asked questions we get is “How do jurors make decisions on damages in civil matters?” Having watched mock juror groups deliberate on hundreds of cases, there is a pattern or loose structure to jurors’ decisions on damages. While this article is based on personal observations, there is also support in the literature for much of these conclusions. See for example, Reyna, V. F., Hans, V. P., Corbin, J.C., Yeh, R., Lin, K., & Royer, C. (2015). The gist of juries: Testing a model of damage award decision making. Psychology, Public Policy, and Law, 21, 280-294 and Hans, V.P., Helms, R. K., Reyna, V. F., (2018) From Meaning to Money: Translating Injury Into Dollars, Law and Human Behavior, Vol. 42, No. 2, 95-109.

As many in the litigation world already know, jurors’ decisions on damages are tied directly to their views on liability. This means jurors need to first decide who should win the case. Once a juror has decided who should win, they then categorize the conduct of the various parties as really bad, somewhat bad or not that bad. Finally, they translate their decision on liability and the categorization of the conduct into monetary awards.

Conduct that is really bad obviously translates into high jury awards, conduct somewhat bad translates into medium size awards and conduct that is not that bad translates into low dollar awards. Each juror’s view on what constitutes a high, medium or low dollar award varies by the individual. What a million dollars means to one juror may mean something completely different to another juror. The frame of reference for how much to award is often set by their views on liability. If they view the plaintiff as deserving of money, they most likely will start by deciding whether the amount of money the plaintiff is asking for coincides with their decision regarding whether the plaintiff deserves a lot of money, some money or not that much money. Because the plaintiff gets to go first, they have the benefit of setting the first reference point. If, however, the jurors view the plaintiff as being less deserving, they may look for other numbers to use as their starting point. This is where low dollar anchors may be effectively utilized for defendants to change the starting point for damage assessment. Briefly, low dollar anchors are monetary values which have some connection to the case that can be used to provide the jurors with an alternate starting point from which to value the case. The cost of current medical care is one of the most common low dollar defense anchors used in this context.

It should be noted that, although it has been laid out as a somewhat step-wise approach, jurors’ decisions do not necessarily proceed in a straight-line fashion and the assessment on liability goes on simultaneously with the assessment of the egregiousness of the conduct. This includes evaluating and categorizing the conduct not only of the defendants, but also that of the plaintiffs as well as potentially any third parties or witnesses that may be involved. Furthermore, individual decisions regarding damages changes when faced with group dynamics.

For now, the process jurors use to determine damages can be summarized as 1) Decide who should win the case; 2) Evaluate the conduct of the parties involved; and 3) Translate the conduct into high, medium or low dollar awards. This is the basis for a more complex discussion on how these steps interact with one another, how they may change in a group dynamic situation and how jurors’ preconceived biases affect their overall perception of the case. These and similar issues will be discussed in more detail in future articles.