And Then There Were None

While it is possible to have one very strong juror advocate for one party’s position against all other jurors, it is also possible to win the lottery, but it does not happen very often.  Because jurors want to reach a consensus and avoid conflict, it is easy to ignore one voice, even if the person is a strong advocate for their position.  Furthermore, there is a strong desire in any group setting to avoid conflict, resulting in the party with the adverse position “giving in” to the group consensus to avoid conflict, especially when there is very little to no support for his or her position.  This is one of the main reasons there are so few hung juries.  This is true when discussing damages as well.  In general, you need at least two and ideally, three jurors in a twelve-person jury to advocate for either increasing or lowering damages.   

Jurors’ inherent desire to “get along” and “to do a good job” means they will work hard to reach a verdict, even if it means they must compromise on things.  One of the most common ways jurors compromise is in their discussion on damages.  In nearly every jury deliberation we have observed where damages are considered, jurors begin the discussion on damages by allowing each juror to offer a value they believe would be fair and finding the average of that number.  If once the average is reached, one or more jurors disagree with this average, they then will attempt to increase or decrease this number accordingly.  Jurors who believe the number is too low bring up attorney’s fees and court costs as a way to increase the award.  On the other hand, jurors who advocate for a more conservative award will look for low dollar anchors to bring the numbers down, such as the plaintiff’s costs for healthcare over the last year.  Jurors looking for ways to decrease an award may also point to insurance as a reason the plaintiff may not need as much money as is being requested. 

Because jurors often begin jury discussions on damages using an average, the key to increasing or decreasing damages is to influence each individual juror’s award.  This can be accomplished in two different ways.  First, as discussed in the previous newsletter, jurors classify the conduct of the various parties as good, bad or not that bad to determine the amount of damages.  This decision then translates into a low, high or medium damage award.  Therefore, the first way to influence an individual juror is by considering ways to make your party the “good guy” and limit or increase damages this way.  The second opportunity to influence damages is to ensure you seat the right type of juror for your desired outcome since each juror may value money in a different way.  In other words, what a high dollar amount means to one juror may be vastly different to another juror.  In our mock trial deliberations, we often hear surrogate jurors say they want to be sure the plaintiff gets the “gold standard” for healthcare treatment.  However, there is a vast difference in what different types of jurors see as the “gold standard” for treatment.  While two jurors may both agree the plaintiff should be awarded a “high” amount, one juror may believe a high award is $1M while another juror may believe $10M is necessary to meet the plaintiff’s healthcare needs.  For this reason, jury selection is really a deselection process, whereby plaintiffs attempt to get rid of jurors who will advocate for low damage awards while defendants will use their efforts to remove any high dollar awarders.     

The damages awarded in any jury trial is influenced both by the individual jurors’ overall views as well as by the way jurors react in a group setting.  Understanding both these aspects is critical to understanding how jurors decide damages.