Cognitive Bias in Jury Damages
Utilizing Cognitive Biases to Legal Advantage
Assuming that the putative view of an ordinary citizen, unaffiliated with the judicial system, is one that the merits of a case are based solely based upon a presentation of facts is common. However, several psychological predispositions illustrate the strategic role that attorney’s assume in jury selection. Understanding the philosophy underlying the moral psychology of the mind offers insights into how both the case for plaintiffs and defendants are open to suggestive framing.
The determination and award of damages in cases that comprise compensatory damages is easily quantified, however considering pain and suffering compensation presents fertile ground for legal study. Empirical studies of jury awards demonstrate that the framing of damage by plaintiffs is influential to the outcome. Similarly, preconceived notions of sexual harassment and prior psychological trauma bear influence upon cases that counsel must be aware of to mitigate.
In examining the method of presentation for claims of ‘pain and suffering,’ the calculating formula influences jury awards in certain situations. A study by McAuliff and Bornstein, demonstrates that the manner in which pain and suffering damage recommendations are presented to juries introduces variability (McAuliff & Bornstein, 2009). Presenting potential jurors with multiple scenarios that frame the data differently, yet each amount to the same totals, justifies a strategic dimension for attorneys. McAuliff and Bornstein particularly note that their findings may point to the fact that jurors are unlikely to do any actual calculations, but rely upon heuristics to “shortcut” their views on the merits of a damage recommendation:
Pain and suffering awards were larger for the $10/hour per diem argument and $175,000 lump sum conditions compared to the $7,300/month per diem argument and no award recommendation conditions. The difference between participants’ awards in the $240/day condition and all other conditions was not statistically significant (McAuliff & Bornstein, 2009, p. 172).
The noteworthiness of the findings lies in uncovering that attorney’s are more apt to win higher damages if recommendations are based on a seemingly low per diem rate of 10.00 per hour, rather than providing a mathematically equivalent rate of 7,300.00 per month provides a more concrete basis for a juror to conclude the damages are excessive. The contrasting damage recommendation of 7,300.00 per month illustrates that jurors may be shifting their focus from an assessment of fair damages based upon the case to a comparative measure of the monthly amount. If jurors were fully engaged in a conscious calculation of damages based upon the merits of the case, then the study should not have found any statistically significant variation in per diem awards.
Furthermore, the plaintiff’s damage recommendation is found to provide an “anchor” that frames the juror’s calculation of noneconomic damages, pain and suffering, so long as the suggested amount was not extreme that results in higher awards (McAuliff & Bornstein, 2009, p. 171).
The maneuverings of counsel to play upon the cognitive limitations and predispositions of jurors is similarly illustrated in considering sexual harassment cases. In findings by Kovera and Cass, seeking damages for mental harm can open the realm of a plaintiff’s psychological history up for defense scrutiny (Kovera & Cass, 2002). A plaintiff’s history of experiencing sexual abuse or trauma, in unrelated instances to the case in question, may influence a juror’s assessment of meeting the standards for a hostile work environment or unwanted advances if a claim of mental abuse seeks damages. Kovera and Cass particularly note, “women were more likely than men to find that the behaviors in question constituted sexual harassment,” and, “without exception, women’s judgments on each of these measures were more proplaintiff than men’s judgment,” (Kovera & Cass, 2002, pp. 100-101). Although some courts are noted to employ a standard of a “reasonable woman” in determining harassment, the efforts to negate the gender bias have been ineffective, “expert testimony did not completely eliminate gender differences in decision making; men were still less likely overall to assign responsibility to the defendant than women, even when they heard expert testimony,” (Kovera & Cass, 2002, p. 102).
Emphasizing the gender gap of determining sexual harassment and the damage awards that would follow illustrates that counsel may strategically seek to seat more female jurors than men to aid plaintiffs. Furthermore, attorney’s formulating arguments to recommend noneconomic damages are best served by either a lump sum higher, but reasonably so, than they seek to set an “anchor” for jurors to judge, or using a low per diem rate that appears comparatively modest, regardless of timespan calculations. Attorney’s that are aware of the cognitive functions and predispositions of people are best situated to formulate strategies and arguments to enhance their client’s interests.
Kovera, M.B., & Cass, S.A. (2002). Compelled Mental Health Examinations, Liability Decisions, and Damage Awards in Sexual Harassment Cases. Psychology, Public Policy, and Law, 8 (1), 96-114.
McAuliff, B., & Bornstein, B. (2009, May 22). All Anchors Are Not Created Equal: The Effects of Per Diem vs. Lump Sum Requests on Pain and Suffering Awards. Law Human Behavior, 164-174.
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