Empirical insights into damage awards in civil litigation
In Steven Spielberg’s 1981 classic movie, “Raiders of The Lost Ark,” Indiana Jones and his partner Sallah realize that in a race to discover the location of the Ark of the Covenant, their adversary (the Nazis) has made a crucial error: “Belloq’s staff is too long. They’re digging in the wrong place!” The scene is an excellent example of how hastily jumping to conclusions and not having all the important information can take you or your team off track. When it comes to understanding jury decision-making, many fall victim to “digging in the wrong place” by relying on intuition and instinct. Litigation has become increasingly perilous, and many have been digging for answers regarding why jury damage awards are going through the roof. The question is: are they digging in the wrong place?
Countless defense attorneys, claims managers, and other pundits in civil litigation have stated in articles and LinkedIn posts that “angry” jurors are the top cause of catastrophic verdicts. The prevailing thought is that once jurors have become angered, they award large verdicts against defendants as a display of their collective rage to “send a message.” To be clear, we agree that angry jurors could potentially award very high damages at trial. However, we also believe that the “angry jury theory” is an oversimplistic and convenient explanation for large verdicts that has little, if any, empirical data to support it.
Many cling to the angry jury theory because of its simplicity: For a jury to award large damages, they must be angry. As ESPN’s college football analyst Lee Corso would say, “Not so fast, my friend!” While juror anger may impact juror decisions on negligence, it is not necessarily the driver of specific damages amounts. The truth of the matter is that the legal, psychological, and sociological underpinnings of what is occurring in the courtroom are far more nuanced and complicated.
We have observed thousands of “angry” jurors in mock trial research quickly side with the plaintiff on negligence and causation questions, then go on to award low or moderate damages. However, we have rarely witnessed “angry” mock jurors handing out insane damage awards. For example, in a recent mock trial involving a pedestrian accident, a juror gave the plaintiff $84.8 million. When asked to explain why she was siding with the plaintiff, she stated that the driver was speeding and not paying attention. She was locked in on the evidence, not her emotions. In that same case, a different juror gave the plaintiff $100 million. Once again, the focus was on the evidence: She calmly keyed in on the actions of the driver. At no time during the jury deliberations or post-verdict interviews did these two jurors become angry when discussing their damage amounts.
Blame the Reptile Theory
According to reptile theory, jurors may experience anger, but they ultimately desire the pleasure of protecting society with their verdict. They want to go home feeling proud of their decision.
Angry jurors are risky. They can quickly turn their fury toward:
Angry jurors are dangerous to all parties. An eager, altruistic juror is only dangerous to the defense. Yet, defense counsel and insurance claims managers persistently claim that plaintiff reptile attorneys are “making jurors angry,” which is causing catastrophic verdicts. Ball and Keenan, the authors of 2009’s “Reptile,” would disagree with this assessment. In fact, they state that when jurors get angry:
“The Reptile is not quite involved, because the Reptile works only on things that can be made better. But in the next stage, when we merely hinted at what people could do about it, our research rooms suddenly filled with Reptiles eager to use the tool the civil justice system provides: fair verdicts.”
This article aims to empirically examine the relationship between juror anger and damage awards in civil litigation. By collecting data from mock jurors, we are conducting the first, to our knowledge, prospective study of its kind.
Based on our consulting observations in the field, we disagreed with the industry consensus that juror anger is the driving, pivotal factor in jury damage award amounts. Therefore, our three original hypotheses before any data collection or statistical analysis were:
Current Research Question
To analyze the relationship between anger and juror awards, we began collecting jurors’ state anger (i.e., how angry they felt after hearing the presentations) toward the parties. Mock jurors completed a five-item questionnaire to identify their current level of anger toward the defendant on a four-point scale ranging from one (Not at All) to four (Very Much). On occasion, we collected anger data on more than one defendant. For example, trucking cases in which the driver of the 18-wheeler and the trucking company were named defendants. In these instances, we averaged the anger scores across all defendants.
It should be noted that anger can be measured as two separate constructs: state and trait. State anger refers to a momentary emotional state commonly related to a specific incident. Trait anger refers to an individual’s long-standing personality characteristic. Although trait anger is an antecedent to state anger, we were only interested in measuring state anger in this study because the prevailing thought is that plaintiffs’ attorneys should increase juror anger and defense attorneys should decrease it.
In addition to state anger scores, we collected compensatory damage awards in two ways: First, jurors answered an individual verdict form as a “jury of one” following deliberations. Part of this verdict form asked jurors, “How much money, if any, would you award plaintiff(s) for compensatory damages?” Second, jurors provided their total “high” (i.e., the juror would not award an amount higher than this), “low” (i.e., the juror would not award an amount less than this), and “fair” (i.e., an amount that was fair to both parties) damage numbers. If we had both sets of numbers, we used the compensatory damages amount from the individual verdict form. If we only had the high/low/fair damages amount, we used the “fair” number for analysis purposes.
Prior to analysis, we standardized the compensatory damage amounts to account for the fact that the data came from several different cases and case types. Since what may be considered “high” in one case may be considered “low” in another, standardizing the results allowed us to make an “apples to apples” comparison across cases.
Correlation Between Anger and Compensatory Damages
The first analysis was to examine the correlation between anger and compensatory damages. The correlation, or association, between two variables is measured by a correlation coefficient, denoted as “r.” The correlation coefficient number ranges from negative-one through zero to positive-one. A positive correlation (i.e., any number above zero to one) indicates that as one variable increases the other variable also increases. Conversely, a negative correlation (i.e., any number below zero to negative-one) indicates that as one variable increases the other variable decreases.
Using the responses from 275 mock jurors, we found the correlation (i.e., r value) between anger scores toward the defendant and compensatory damages to be .30. This correlation was statistically significant at a less than .001 level. However, a statistically significant finding does not tell us about the strength of the relationship between the variables—this is the purpose of the correlation coefficient. Regarding classification of a given r value as “strong,” “moderate,” or “weak,” an r between zero and .4 is often considered a weak positive correlation. Our findings support the assertion that anger’s relationship to damage awards is “weak positive” at best and is not nearly as strong as many in the industry have argued. This finding aligned with our original hypotheses.
Regression Analyses Between Anger and Compensatory Damages
The next step in our analysis was to conduct a linear regression between anger and compensatory damages. A regression analysis is used to examine whether a set of variables predict an outcome variable; in this case, whether jurors’ level of anger toward the defendant can predict compensatory damage awards. Not surprisingly, we found that juror anger was a statistically significant predictor of compensatory damages at the less than .001 level.
Like the correlation analysis, statistical significance is one piece of the puzzle. The next piece is to examine how much of the variance (i.e., how far a set of numbers is spread out from their average value) in compensatory damages can be explained by juror anger. The measure of the amount of variance in the outcome variable that is explained by a predictor variable (or set of predictor variables) is expressed as an “R2” value. An R2 can take any value between zero (the model explains 0% of the relationship between the outcome and predictor variables) and one (the model explains 100% of the relationship between the outcome and predictor variables).
In our analysis, the R2 was .09. This finding suggests that 9% of the variance in compensatory damage awards can be explained by juror anger—leaving 91% unaccounted for. This finding also aligned with our original hypotheses. It should be noted that there are no hard and fast rules regarding whether an R2 is good or bad. However, a low R2 suggests “underfitting” of the model, which means adding additional variables may help to improve the model’s ability to predict the outcome.
Regression Analyses
Based upon the low R2 in our initial analysis, we decided to include another variable that may be useful in predicting compensatory damage awards—jurors’ perceptions of the plaintiff’s evidence strength. To obtain this information, we asked jurors to rate the strength of the plaintiff’s case on a scale of one (Very Weak) to six (Very Strong). If there was more than one set of plaintiffs (e.g., personal injury case where multiple individuals were involved), we averaged the strength of evidence across all plaintiffs. Across jurors, the mean evidence strength was 3.4.
We then ran another regression analysis in which we included juror anger and plaintiff evidence strength as predictor variables. The outcome variable was still compensatory damages. After including plaintiff evidence strength, juror anger was no longer a statistically significant predictor of compensatory damage awards. Plaintiff evidence, however, was statistically significant at the .02 level. The R2 of this new analysis was .11, which suggests adding plaintiff evidence strength improved the overall “fit” of the model, albeit not greatly. Overall, this analysis suggests that once you take into consideration jurors’ perceptions of the plaintiff’s evidence strength, their level of anger toward the defendant is no longer a significant predictor of compensatory damages.
The argument that angry jurors are the driving force behind large verdicts reminds us of a quote from Charles Baudelaire that was popularized in the movie, “The Usual Suspects”: “The greatest trick the Devil ever pulled was convincing the world he didn’t exist.” Our results suggest that maybe the greatest trick the plaintiffs’ bar (or some within the defense bar) has ever pulled is convincing defense attorneys that angry jurors are primarily responsible for large verdicts.
We realize that some readers may take issue with our analyses. Some may argue they were too simplistic. Some may argue we should have controlled for additional variables aside from just plaintiff evidence, with the ultimate argument being that if we had done more complex analyses and controlled for more variables, then anger would have been significant. These arguments fail for a few reasons. First, we ran other analyses that were not presented in this paper because of space limitations and their statistical complexity. These analyses showed similar results to the ones presented here.
Second, our analyses were simplistic because the arguments we hear about angry jurors do not take other factors (e.g., witness testimony, attorney credibility, and evidence strength) into consideration. We do not hear arguments such as, “Juror anger leads to large verdicts, but only if you have jurors with high trait anger, bad witnesses, catastrophic injuries, a difficult judge, and a difficult venue.” The arguments we hear are, “If you can get jurors angry, you can get higher verdicts.” Or, conversely, “If you can diminish juror anger then you can tamper down verdict amounts.” As such, our primary goal of this paper was to show that causative factors of large verdicts are not that cut and dry. We highlighted this by only adding one variable that could also explain high damages (i.e., plaintiff evidence strength).
It should be noted that the findings of this paper are preliminary. We agree that more research is needed to examine the relationship between juror anger and damage awards. It may be such a thing that juror anger only matters in specific case types (e.g., severe bodily injury). It may be that juror anger interacts with other variables to explain large damage awards. It may be that juror attitudes toward damage awards are more influential than juror anger. It also may be that what attorneys are referring to as “anger” is some other construct (e.g., irritation or resentment), which is being mislabeled as anger. Until there is a clearer answer regarding what is occurring with jurors, we will continue to collect data across a range of variables and continue to examine the factors related to high damage awards.
Overemphasizing strategies for mitigating juror anger, while neglecting other critical elements such as attorney credibility, witness testimony, and alternative causation, may inadvertently expose defense attorneys to the very risk they seek to avoid—catastrophic verdicts. It is advisable for defense attorneys to adopt a tactic akin to that of plaintiffs’ attorneys: evaluating case strengths and weaknesses through early focus group assessments during the litigation process.
Steve Wood, Ph.D., is senior litigation consultant at Courtroom Sciences, Inc.swood@courtroomsciences.com
Bill Kanasky Jr., Ph.D., is senior vice president of Courtroom Sciences, Inc. bkanasky@courtroomsciences.com
