By Dr. Ken Broda-Bahm:
Flip a coin, roll the dice, pick a number, throw a dart -- there is no shortage of metaphors for the perceived randomness of juries. That belief that "anything can happen," is applied to some extent to the whole jury model, but nowhere more so than on the topic of civil damages. When jurors are asked to supply a number, particularly on the categories that are intangible (like pain and suffering) or somewhat speculative (like lost earnings), the eventual number is sometimes treated as a kind of crapshoot. What's more, the process that the jury goes through to get to it is seen as a kind of black box: not well understood or necessarily subject to clear influence.
What litigators might not know is that the subject of civil damages is a great example of social science research beginning to close the gap. Based on research within the last decade, we are coming closer to opening that black box in order to see a jury process -- albeit not fully predictable, but at least more knowable. The way jurors arrive at a number is increasingly capable of being described through the literature, and these descriptions have implications for the ad damnum requests made by plaintiffs and for the alternative amounts recommended by defendants. A study just out this year (Reyna et al., 2015), for example, provides support for a multistage model describing how jurors move from a story, to a general sense or 'gist' of damages, and then to a specific number. Their work shows that, while the use of a numerical suggestion -- an 'anchor' -- has a strong effect on the ultimate award amount, that effect is strongest when the anchor is meaningful. In other words, just about any number will have an effect on a jury, but a meaningful number -- one that provides a reference point that matters in the context of the case -- carries a stronger and more predictable effect. This post will share some of the results from the new study framed around some conclusions that civil litigators should take to heart.