Determining Damages: The Psychology of Jury Awards.

Vol. 15 No.3 (March 2005), pp.191-194

DETERMINING DAMAGES: THE PSYCHOLOGY OF JURY AWARDS, by Edie Greene and Brian H. Bornstein. Washington, D.C.: The American Psychological Association, 2003. 238 pp. Hardcover. $49.95. ISBN: 1557989745.

Reviewed by Paul Lermack , Political Science Department, Bradley University. Email: pnl@bumail.bradley.edu .

Many disciplines have questions that can be answered by research on juries. Political scientists, psychologists, social psychologists, sociologists, anthropologists, economists, law professors and scholars who work with language are all producing empirical studies. If we add the anecdotal reports of lawyers, former litigants and witnesses, and the narratives of journalists, the resulting body of literature is enormous. It is certainly too large for any one person to read it all.

Therefore, we need the work of synthesis. A book that poses some question and then organizes the relevant data around it belongs in every college library. Recently, for example, we have Jonakait (2003), which, as the accurate dust jacket says, “discusses the empirical data that show how juries actually operate and what influences their decisions.” Another example is Kassin and Wrightsman (1988), who assemble evidence gathered primarily by psychologists. Such books are valuable, if for no other reason than that they allow students to study efficiently what we actually know about jury behavior.

Greene’s and Bornstein’s book is less comprehensive; it focuses on civil juries and explores only the variables that affect how jurors determine civil liability to construct actual and punitive damages awards. This is an important topic. Although pioneering empirical researcher Harry Kalven long argued that the civil jury plays a key role in our court system, (e.g. 1964) it is less often studied than the criminal jury. Less material is available for classroom use and civic education. Moreover, civil juries are presently the subjects of political pressure for drastic reform. They are attacked as incompetent, or (as the dust jacket of the present book puts it) “biased, capricious, unreliable, hostile to corporate defendants, excessively generous, and out of control.” Are these charges correct? The empirical data presented here are relevant.

The authors are psychologists currently at, respectively, the University of Colorado in Colorado Springs and the University of Nebraska. Both have published extensively in the field of jury studies, and both have worked as consultants to trial lawyers. They focus here on what psychologists find most interesting, the variables that affect juror decision-making—characteristics of the various trial participants, the severity of the injury with which the trial is concerned, the behavior of people in the courtroom, the admissible and inadmissible evidence, and, most interestingly, the process jurors follow in the jury room when they decide what to do. [*192]

There are few surprises in the description of juror behavior, because the authors rely on previously published research (some of which they performed themselves), and also because most research in the field is meant to replicate or flesh out the pioneering work of the Chicago Jury Project in the 1950s (Kalven and Zeisel 1966). Thus, for example, we learn that juries are influenced by such variables as the age, gender and race of the plaintiffs, but that such influence is modest, much less than the influence of the evidence. Though jurors properly consider the “deep pockets” of blameworthy defendants when they assess punitive damages against them, the data are “sharply split” (p.67) on whether there is a legally improper deep pockets effect when actual damages are calculated. Overwhelmingly, jurors are found to depend most heavily on the evidence.

Jurors, we can conclude, generally approach their work conscientiously and are capable of these complicated tasks. This confirms preponderant opinion in the field. But the authors also confirm the existence of known problems. Jurors bring their experiences with them into the jury room and are sometimes influenced by their preexisting notions of justice and equity. They are sometimes impermissibly influenced by race and wealth, and they are often confused about the law. Although the authors conclude that these undesirable influences affect judgments only modestly and are less important than the evidence, the findings are troubling nevertheless.

The book becomes more intriguing when the authors turn to the decisionmaking procedure in the jury room. Just how do jurors determine how much to award under the headings of actual and punitive damages? How do the customs and conventions of discussion among strangers affect decisions? The authors rely most heavily on simulations. In the absence of data from real juries, upon whom we cannot eavesdrop in any systematic way, simulations are the next best thing. However, the deliberation in a jury room cannot be simulated. The jury’s complex and important task, performed under stress by conscripts plagued by irrelevancies and distractions, is simply not the same as the simple and trivial experimental task, performed by college students in familiar surroundings, and carefully designed to eliminate all irrelevancies and distractions. Experimental conditions can be made more realistic, as when “real” jurors are chosen from jury pools. But as a practical matter, only a limited realism can be achieved. Since the experimental variable must be isolated (and everything else held constant), and since the experiment must be run repeatedly in exactly the same way, details need to be controlled. The simulated trial is usually filmed or taped, lest the actors have colds on one day, or let some flash of irrelevant anger show on the next.

Instead of trying to reproduce the whole deliberation, experimenters typically focus on one bit or variable. Studies are modest; the Chicago jury project learned, for example, that gender, age, race, attractiveness and sheer assertiveness all play a role in determining who, in the jury room, emerges as a leader. But the findings thus far are so fragmentary that it has proven impossible to induce anything like a general theory of deliberations. [*193] Must a leader inevitably emerge in the jury room, or is the documented emergence of leaders an artifact of the way in which certain studies were constructed? If a leader emerges, are the deliberations inevitably and systematically different than they would be without a leader?

The present authors do not attempt anything like a general theory. Instead, they focus on a number of phenomena, or variables, that affect deliberations. They assemble data on each of these phenomena, analyze their impact, and then consider the usefulness of various reforms that have been proposed. Thus, for example, it has been hypothesized that when a jury has to calculate a precise damage amount, it will be highly influenced by whatever benchmark sum has been presented to it. This amount, or “anchor,” is thought to become the starting point for discussion; jurors revise it upwards or downwards as they consider evidentiary factors. In some states, the plaintiff’s lawyer is required to request a specific amount of damages. If the jury tends to view this “AD DAMNUM” as an anchor, it would be to the lawyer’s advantage to make the amount as large as possible.

This hypothesis can be studied by using mock juries. The experimenter runs the trial over and over, varying only the amount (or mere existence) of the AD DAMNUM. The experimental situation need not be very complex or realistic; it need only isolate this one variable. In fact, the work has been done. As a rule of thumb, and all other things equal, the more the lawyer asks for the more the winning client will get (pp.151-152). Plaintiffs’ lawyers in states that permit or require AD DAMNUMS are favored; those in states that forbid them are disadvantaged.

The authors study a number of these influential variables. In addition to reliance on anchors, they find that jurors characteristically adopt a holistic approach, looking for a single sum that “seems right;” that they are affected by such complexities as multiple plaintiffs, counter-intuitive legal rules and the need to apply some facts only when calculating punitive, as opposed to actual, damages; and that “blindfolding” jurors by denying them information (about insurance or attorneys’ fees) simply leads jurors to make assumptions about such things from their own knowledge or biases. The findings then inform a discussion of proposed technical changes to the law meant to improve jury trials, among them clarifying instructions, bifurcating the trial—that is, separating the calculation of actual and punitive damages—and capping awards.

DETERMINING DAMAGES is meant to be a comprehensive summary of what is known. It is scholarly, authoritative, and published by the American Psychological Association. For all these reasons, it will inevitably play a role in the current debate concerning drastic reforms in civil court procedures. If we ask whether jurors are capable, as the system now exists, of providing fair and equitable civil justice, the answer is a qualified yes. Jurors have this capability, and if they do not always achieve the ideal, they are certainly no worse than any conceivable alternative. We may be able to eliminate some of the problems researchers have found by tinkering with the law as the authors discuss. The drastic reforms proposed by some [*194] politicians would therefore seem to be unnecessary, if not counter-productive.

But assuming that jurors CAN do the job, are they doing so? Are existing awards too large, too unpredictable, or biased in undesirable ways? The authors present statistical evidence to demonstrate that jury awards are typically “modest, stable and predictable” (p.35). The whopping punitive damage blockbusters, so haunting to critics, are rare. Added to the finding that jurors focus most on the evidence, it is hard to see how the process can be faulted, or how an alternative process could do any better. Still, equity is a problem. Juries should treat like cases similarly in some reliable way (p.79). The authors concede that a few huge awards in a small number of unusual jurisdictions may have skewed statistics, making the process seem less reliable than it is on average. Horizontal equity, they admit, “is much less than one might desire.”

This lack of equity may be getting worse. Recent research has indicated that massive awards of $100 million or more have increased dramatically since 1999; that they are highly concentrated geographically, with 27 of 64 in only two states; and that juries award more money, in much less predictable ways, than judges (Viscusi 2004; Hersch and Viscusi 2004). This research suggests that the policy question of whether juries are doing what we want may not best be dealt with by evidence in the form of averages. In its impact on the system, its deterrent effect on businesses, and its hortatory effect on public opinion, the occasional well-publicized unpredictable blockbuster award may be more important than the normal, ordinary or typical award.

REFERENCES:

Hersch, Joni, and W. Kip Viscusi. 2004. “Punitive Damages: How Judges and Juries

Perform.” 33 JOURNAL OF LEGAL STUDIES 1.

Jonakait, Randolph N. 2003. THE AMERICAN JURY SYSTEM. New Haven: Yale.

Kassin, Saul M., and Lawrence S. Wrightsman. 1988. THE AMERICAN JURY ON

TRIAL: PSYCHOLOGICAL PERSPECTIVES. New York: Hemisphere

Publishing Co.

Kalven, Harry, Jr. 1964. “The Dignity of the Civil Jury.” 50 VIRGINIA LAW REVIEW 1055.

Kalven, Harry, Jr., and Hans Zeisel. 1966. THE AMERICAN JURY. Boston: Little,

Brown.

Viscusi, W. Kip. 2004. “The Blockbuster Punitive Damages Award,” Harvard Law

School John M. Olin Center Discussion Paper Series #473; SSRN #535704.

*************************************************************