Litigation Tips Archive

Did you know…

  • Most jurors consider themselves as slow decision makers who focus on details when deciding a case?
  • Most jurors are long range planners and believe they have control over events in their lives?
  • Most jurors engage in a wide range of hobbies, entertainment activities, and organizational memberships?
  • Most jurors favor caps on intangible damages and other limitations on verdicts?

Call the experts at Magnus to learn why these, and other juror characteristics, ultimately affect their liability and damages decisions.

Fusion of Liability and Damages

Numerous scientific studies have shown that, contrary to the intent of the legal system, jurors often “fuse” liability and damages decisions. Plaintiffs who are more comparatively negligent often have their damages reduced by jurors, producing a double discounting effect. Similarly, severely injured plaintiffs cause jurors to find defendants more blameworthy. The psychological phenomenon known as the “hindsight bias” explains the liability/damages fusion. Hindsight bias is the “I knew it all along” rationalization which occurs when an outcome of an event is known (the scenario in all civil lawsuits). When an event has a known outcome, jurors misperceive that they could have predicted it. It is jurors’ inability to ignore the parties’ negligence when determining damages that produces the fusion effect.

Contact the Litigation Consultants at Magnus to learn more about the fusion effect.

The Challenge of Subjective Damages

Although subjective, or intangible, damages encompass a wide variety of losses, jurors usually consider only “pain and suffering” when deciding how much to award. In addition, many jurors believe there should be a cap on subjective damages awards in personal injury and wrongful death cases. Defense attorneys are advised to capitalize on jurors’ narrow views of what constitutes subjective damages, while plaintiffs’ attorneys must provide considerable education to overcome jurors’ pre-existing biases. Regardless of which side an attorney represents, subjective damages should never be an afterthought. Consider jurors’ expressions on subjective damages as indications of their underlying attitudes and develop cause and peremptory challenges accordingly.

Contact Magnus to reduce the subjective damages challenge.

Juror Attitudes Regarding Consortium Damages

Magnus Research Consultants has been involved in numerous cases in which the spouse of a plaintiff has filed a claim for loss of consortium. Interestingly, the results of our polling of mock jurors in several recent cases have revealed that 52% of mock jurors are generally in favor of awarding consortium damages, while 48% of mock jurors believe consortium damages should not be awarded. During deliberations, the most frequent comment made by mock jurors who oppose consortium damages is, “in sickness and in health…”, indicating that they believe taking care of an injured spouse is a duty that should be uncompensated. Damages for loss of consortium, thus, remains a controversial topic that needs exploring on a case by case basis.

Contact Magnus to find out how jurors react to the facts of your case.

The Rationale of Requesting Damages

There are as many theories regarding requesting damages from juries as there are attorneys who make these requests. At Magnus Research Consultants, we have had the opportunity to work with countless attorneys, and consequently, to assess the impact of: (1) plaintiffs’ counsel requesting a large amount of damages to determine whether there is a “ceiling effect” on an amount a jury would be unwilling to award; (2) plaintiffs’ counsel not providing exact amounts of intangible damages to find out what the jurors believe is fair, when left to their own devices; (3) defense counsel, due to a belief the case should be decided in the defendant’s favor, not providing damages in a lower amount than those requested by plaintiff’s counsel as a way to invalidate the plaintiff’s liability case; and (4) defense counsel’s provision of lower damages amounts, in each category requested by the plaintiff, to provide the jury with alternatives to the plaintiff’s large damages request. Although there are other variations in requesting damages, the 4 strategies mentioned above are the most common, at least based on our decades of experience.

The overall conclusion Magnus has reached regarding damages requests is that the jurors should not be left on their own; damages are far too important to allow the jurors to award any amount they believe is “fair and just” without the appropriate amount of guidance concerning each and every category of damages. This means that, for plaintiffs’ attorneys, an amount of damages that can be validated via a life care plan or other means, should be used as a benchmark to anchor other categories of damages, particularly the intangible losses experienced by the plaintiff. There are vast differences among individuals in the amount of money they believe will be sufficient to compensate the plaintiff and plaintiffs’ counsel who leave the decision entirely in the jury’s hands are leaving too much room for the jury to award an amount considerably lower than the amount they are hoping to obtain on behalf of their client. Defense attorneys, on the other hand, must provide the jury with “reasonable” alternatives to the plaintiff’s damages requests. Failing to do so often results in the jurors, when faced with only the plaintiff’s large numbers, believing the defendant has conceded to these amounts in the event the liability portion of the case is decided in the plaintiff’s favor. It appears that there is little truth to the oft cited notion that providing the jury with lower damages amounts serves to validate the plaintiff’s argument that he/she/it is deserving of an award.

In general, because all civil cases are ultimately as much about damages as they are about which side prevails, considerable thought should be given to damages requests in every category, by both plaintiffs’ and defense counsel. Do not expect a jury who has little knowledge of the case facts and no vested interest in its outcome to do your work for you. Instead, develop strong theories of damages, substantiated by the evidence, then explain your theories to the jury in a way they will comprehend.

Contact Magnus for a scientific evaluation of the damages in your next case.