Trial Magazine

How jurors decide noneconomic damages may seem mysterious and random, but it is neither. Compare the typical damages recovered for someone who suffers from paraplegia to those recovered for someone who suffers a broken wrist. Associating damages with injury severity is an example of jurors using a systematic process to determine award outcomes. More severe injuries lead to greater overall damages,¹ including higher pain and suffering damages.² Yet, this is only one part of the jury’s decision-making process.

Researchers have found that injury severity alone does not directly correlate with increased damages for pain and suffering.³ Even though injury severity may be the single best predictor of total damages, it explains less than half of the variance in damages for pain and suffering.⁴ At least three other factors influence jurors’ systematic process to determine pain and suffering damages: interference, anchoring, and fusion.⁵ Since pain and suffering damages account for approximately half of the total damages in many areas of personal injury, it’s important to understand these factors and how they may influence your client’s recovery.⁶

Interference

Jurors seek evidence beyond an injury’s severity and the plaintiff’s subjective degree of pain and suffering. They want to know how the injury interferes with the plaintiff’s life (for example, the ability to do necessary life activities, to attend work or school). In my experience, when the subjective assessment of a plaintiff’s pain and suffering can be translated into something objective, tangible, or measurable—such as how it restricts or impacts a person’s life—it appears more quantifiable. Recent research finds that the more jurors consider an injury’s interference with the plaintiff’s life, and not just the existence, extent, or duration of the pain and suffering, the more they award for pain and suffering.⁷ Identifiable interference in the plaintiff’s life seems to translate more readily into a specific number.⁸

Anchors

Translating noneconomic harms into numbers is a challenge for lawyers and jurors alike, but offering jurors a numerical reference point—an anchor—makes it possible for them to achieve a more relevant damages number.⁹ Providing an anchor to jurors correlates with damages in general, and specifically with damages that sufficiently compensate plaintiffs for their pain and suffering.¹⁰ It is well recognized that a numerical anchor influences jurors’ judgment about damages even if they do not recognize that the anchor affected their decision.¹¹

Since most jurors are unfamiliar with or uncomfortable quantifying noneconomic harms, giving them an anchor to guide their decision-making is particularly important. Still, lawyers sometimes wonder whether they should recommend an amount for noneconomic damages for fear of introducing an amount lower than the jurors would determine on their own.

However, research shows that leaving jurors to reach a number on their own fuels uncertainty about pain and suffering and results in significantly lower damages than when an anchor is provided.¹² It creates the perception that pain and suffering is incalculable, and jurors then regularly consider it “noncompensable.”¹³ A dollar recommendation offered by the lawyer signals otherwise and introduces a starting point from which jurors can adjust their damages based on their perceptions of the case.

Choosing the right anchor. In a classic anchoring study, researchers rigged a wheel of fortune to stop at certain numbers, after which they asked participants to answer an unrelated question—they found that participants’ answers stayed close to the wheel of fortune numbers despite the lack of relevance to the question.¹⁴ While random anchors may influence a juror’s decision, an anchor’s effectiveness increases when it is tied to a relevant reference point from the case.¹⁵ For example, in the famous McDonald’s hot coffee case, jurors awarded punitive damages based on the approximate revenue from two days of coffee sales.¹⁶ Choose the anchor number thoughtfully and carefully so it’s relevant to the case.¹⁷

Providing meaningful numbers helps jurors choose an amount that corresponds to their underlying sense of a person’s pain and suffering.¹⁸ An anchor becomes meaningful when it connects to the case—for example, median lifetime earnings, annual profits from a defective item in a products liability case, or the length of the track in a railroad case.¹⁹ Focus groups and mock trials regularly reveal case connections and possible anchors to consider. Listen to what is important to the mock jurors and how they relate the pain and suffering to themselves; then explore how to quantify it.²⁰

An anchor need not be a dollar figure—it must simply represent a case-relevant number. It may be the number of missed opportunities or the number of the plaintiff’s visits to doctors’ offices in a medical malpractice case. In a trucking case, it may be the number of driver log infractions. Sometimes an anchor for pain and suffering or other noneconomic damages equates to an amount introduced for another line item—for example, medical expenses or lost earnings can become a multiplier for pain and suffering.

When possible, choose a number that keeps the focus on the defendants and their wrongdoing. It could be the total number of toxic pills sold in a pharmaceutical case, the total number of tires sold in a defective tire case, or the number of lies told in any type of case. During focus groups or mock trials, listen not only to what mock jurors consider important but also to what offends them—then quantify it.

If a relevant anchor cannot be derived from the defendant’s actions, then look to the plaintiff. For example, the duration of time between the plaintiff’s injury and any medical assistance, the number of breaths before death, the number of rides per week the plaintiff must find, or the number of flowers a plaintiff will not plant in her garden because of the injury.

Making the request. Introduce an anchor number early in the case—in your opening statement or even during jury selection—not necessarily as a damages request. Then convert the number to a damages request during your closing argument.

For example, if you are alleging negligent retention or failure to terminate when seven major complaints were ignored, request $700,000, $7 million, or $70 million depending on injury severity, the egregiousness of the defendant’s conduct, and other factors. During trial, introduce the seven complaints and their importance, then during closing argument ask for a dollar amount that incorporates the number seven—you need not make the connection directly; jurors will understand how you arrived at seven.

How the damages anchors are requested influences the result as well—an anchor for a lump sum request tends to be more successful than one for per diem requests.²¹ For example, in the previous example of the seven ignored complaints, $7 million is offered as a meaningful lump sum rather than a request of 7 x $1 million. Nonetheless, anchors with the greatest connection and meaning to the case outperform regardless of how they are introduced.²² If the greatest connection is a per diem argument, then choose it.

Fusion

Jurors don’t view liability and damages as two separate pieces of a whole but as overlapping and interdependent pieces. Their thoughts about liability and damages fuse together despite legal distinctions. Even if jurors aren’t supposed to consider attributions of fault (such as contributory negligence), they may still provide greater damages for pain and suffering when they believe the defendant holds greater responsibility.²³

Perceptions about the defendant’s responsibility are directly related to damages.²⁴ When a juror views the defendant as only a little responsible, then they seek to provide only a little in damages. When the defendant’s wrongdoing is perceived as egregious, then jurors seek to assess commensurately high damages.

Similarly, if jurors view the plaintiff as contributing to his or her predicament—regardless of whether a contributory negligence claim is made—they tend to reduce the plaintiff’s damages by this perceived attribution of fault.²⁵ When contributory negligence is asserted, the intuitively reduced damages indicated by jurors become further reduced by the court. So the net result of jurors intuitively reducing damages by the plaintiff’s responsibility is a double reduction of damages.²⁶ In this way, fusion over-penalizes plaintiffs for their responsibility.

Obtaining Appropriate Damages

It helps to think about both interference and fusion when selecting an anchor—how the client’s pain or suffering hinders, alters, or interferes with his or her life provides objectivity to the number and support for the anchor selected, and how fusion affects how jurors adjust the verdict amount for pain and suffering from the requested anchor amount. Jurors award higher damages based on the egregiousness of the defendant’s actions; yet they also reduce damages by the plaintiff’s degree of responsibility (which is doubly reduced in contributory negligence cases). So set a meaningful anchor with an understanding of how the jury might perceive and adjust the number.

When possible, relate the pain and suffering anchor to the defendant’s wrongdoing to shift the focus back to the defendant. For example, in a toxic exposure case, mock jurors determined the plaintiff was 70% responsible because he had 70 packs per year of cigarette smoking exposure (the defense’s anchor). We shifted the story to emphasize that the defendant knowing the relationship between the toxin and smoking would exponentially increase the dangers and that it did not educate or warn the plaintiff about it. At trial, the plaintiff was held only 40% responsible.

To obtain sufficient pain and suffering damages for your client, consider doing the following:

• Vividly describe your client’s injury and pain and suffering with action words that reflect severity—then show how the pain and suffering interferes with your client’s life.
• Avoid forcing jurors to determine a starting number—instead offer a meaningful lump sum anchor number for pain and suffering.
• Account for fusion by showing the egregiousness of the defendant’s actions and minimizing or mitigating the plaintiff’s responsibility whenever possible (even in cases not involving contributory negligence).
• Set the anchor figure to account for the possible double reduction due to fusion.

It’s important to understand how jurors translate their impressions of your clients’ injuries into noneconomic damages—including damages for pain and suffering—so that you can achieve some measure of justice for your client.

Patricia Kuehn is a national litigation consultant in Barrington, Ill., and can be reached at pkuehn@pktrial.com. Copyright © 2020 Patricia Kuehn.

Notes

1. Roselle L. Wissler, Patricia F. Kuehn & Michael J. Saks, Instructing Jurors on General Damages in Personal Injury Cases, 6 Psychol. Pub. Pol’y & L. 712 (2000).
2. W. Kip Viscusi, Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards?, 8 Int’l Rev. L. & Econ. 203, 208–14 (1988).
3. Krystia Reed, Valerie P. Hans & Valerie F. Reyna, Accounting for Awards: An Examination of Juror Reasoning Behind Pain and Suffering Damage Award Decisions, 96 Denv. L. Rev. 841, 863 (2019).
4. Ronen Avraham, Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change, 100 Nw. U. L. Rev. 87, 93 (2006); see also Viscusi, supra note 2.
5. Reed, supra note 3.
6. Avraham, supra note 4, at 87; Neil Vidmar, Felicia Gross & Mary Rose, Jury Awards for Medical Malpractice and Post-Verdict Adjustments of Those Awards, 48 DePaul L. Rev. 265, 296 (1998).
7. Reed, supra note 3, at 855, 863, 865.
8. Id.
9. Anchoring was first identified in 1974. See Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 Sci. 1124, 1128–30 (1974). However, the effects of anchoring on damages remain quite robust. See Rebecca K. Helm et al., Numeracy in the Jury Box, Numerical Ability, Meaningful Anchors, and Damage Award Decision Making, 34 Applied Cognitive Psychol. 434 (2019); see also David Ball & Artemis Malekpour, Tugging Up Damages, Trial, Jan. 2019, at 14; Kathleen Flynn Peterson, Brandon Thompson & Lindsey Lee, Dropping the Anchor, Trial, Apr. 2017, at 34; Gregory S. Cusimano, By the Numbers, Trial, Sept. 2016, at 22.
10. Reed, supra note 3.
11. Id. at 844.
12. Id. at 860–61.
13. Id. at 856.
14. Tversky, supra note 9, at 128.
15. Valerie P. Hans, Rebecca K. Helm & Valerie F. Reyna, From Meaning to Money: Translating Injury into Dollars, 42 L. & Hum. Behav. 95, 95 (2018); Reed, supra note 3, at 861.
16. Allison Torres Burtka, Liebeck v. McDonald’s: The Hot Coffee Case, Am. Museum of Tort Law, https://www.tortmuseum.org/liebeck-v-mcdonalds.
17. For more on juror perceptions of anchors, see Bradley D. McAuliff & Brian H. Bornstein, All Anchors Are Not Created Equal: The Effects of Per Diem Versus Lump Sum Requests on Pain and Suffering Awards, 34 L. & Hum. Behav. 164 (2010).
18. Helm et al., supra note 9, at 444–46. For more information, look into Hans and Reyna’s “gist” model and fuzzy-trace theory.
19. Hans, supra note 15, at 100.
20. For more information on meaningful anchors and understanding damages, see Patricia Kuehn, More Than a Number: Damage Award Figures, AAJ Case Workshop Program (2015).
21. McAuliff, supra note 17, at 173.
22. Reed, supra note 3, at 861.
23. Id. at 858–59.
24. Hans, supra note 15, at 103.
25. Patricia Fowler, Do Jurors Automatically Reduce Damage Awards Due to Attributions of Contributory Negligence?, Am. Soc’y Consultants, Court Call 4–7 (1997).
26. Id.; Douglas J. Zickafoose & Brian H. Bornstein, Double Discounting: The Effects of Comparative Negligence on Mock Juror Decision-Making, 23 L. & Hum. Behav. 577, 578–89 (1999).