[co-authors: Richard Gabriel, Emily Shaw, PhD]*

All lawsuits start with the potential to someday reach the view of a jury. Yet, the jury’s perspective is often forgotten by attorneys preoccupied with discovery, motion practice, the preparation of witnesses, and the hiring of experts. At various points in the discovery and pre-trial process, settlement discussions ensue based on a number of variables:

• The severity of harms the plaintiffs are claiming.
• The factual scenario that gave rise to those harms.
• The witnesses’ explanation of the facts as well their skill and demeanor.
• The track record and skill of the litigators.
• The venue where the case will be tried.
• The motivation and risk aversion of the parties.
• How well the parties think the law supports their cases.
• Judicial rulings.

Current research suggests there is a 95-97 percent chance that a case will settle before a jury has a chance to reach a verdict (Law Dictionary, n.d.). There are numerous causes for this, including the parties genuinely resolving their disputes, the prohibitive cost of trials, and the lack of experienced trials lawyers who are confident trying cases in front of jurors. But the main reason given by lawyers, judges, and mediators for resolving a case before trial is the unpredictability of juries.

For many years, jury verdicts have been mythologized by news articles about “nuclear verdicts” and speculation about all the reasons that juries decide cases aside from the evidence and the law. This uncertainty about how juries decide cases and damages leads attorneys, insurance companies, and risk managers to prepare and value their cases for other lawyers, clients, mediators, and judges. But not for juries. As a result, most settlements and jury verdicts are based on speculative or arbitrary numbers rather than on a thorough understanding of how juries decide on damages. This results in hundreds of millions and even billions of dollars in unnecessary settlements and verdicts.

Factors That Increase Settlement Value

Naturally, there are many good reasons to resolve cases before a jury trial. However, there are a number of variables aside from actual case merit that increase settlement values – not all of them valid:

• The significant cost of a long trial can prompt defendants to legitimately try to resolve a case.
• Prior high jury verdicts for similar cases are often used to inaccurately assess settlement value, even though the facts of a case can differ significantly, and the attorneys, witnesses, and jury all have a profound effect on the verdict.
• Plaintiff attorneys who have received prior large verdicts are sometimes given outsized credit for their win, depending on the case facts, how the witnesses did, and the effectiveness of defense counsel.
• The plaintiff’s bar actively trains attorneys in trial skills, while the defense bar trains their attorneys in pre-trial litigation skills. This can create a disparity in comfort level in taking a case to trial.

• Defense attorneys’ reluctance may also stem from a fear of losing clients if they get a negative verdict.
• An insurer or company may develop a reputation and routine practices for settling cases, which then may increase plaintiff demands, citing prior high verdicts.
• A company may be concerned about the reputational harm that a publicized lawsuit may bring to their brand.
• An insurer may be concerned about being sued for bad faith if they fail to settle a case within policy limits and a defendant is hit with an excess verdict.
• The defense might not have a clear strategy for how to present their view of damages at trial, aside from simply disputing the plaintiff’s claims.
• Defendants and defense attorneys alike may view jurors as emotional, irrational, biased, anti-corporate, and unsophisticated. They may believe jurors cannot understand complex evidence or cannot be relied upon to follow the evidence and the law.

When claims committees in insurance companies meet, no doubt they evaluate the potential damages in a case, the reports of experts, the evaluation of defense counsel, and maybe the results of a mock trial or focus group on the case. However, they also use largely unrelated or subjective criteria such as the value of similar claims they have settled, their own impressions of the credibility of a plaintiff, and work they may have previously done as defense lawyers years ago when they were practicing.

So, what can be done by the defense to better anticipate how jurors will react to a case? What are the key risk factors to watch for? How can the defense more realistically evaluate the risk of a case? In the following article, we discuss our answers to these questions based on the research and our own decades of experience studying jury decision-making. This article is designed to help defense litigators and their clients understand how jurors actually calculate damages and rethink how they can more efficiently and effectively prepare their cases to ensure greater predictability and control over their settlements and their damages’ presentations in trial. It will identify issues that drive jurors to award higher damages and practices that will make damages evaluations more tangible, realistic, and evidentiary.

We will approach these topics in the following framework: First, we will identify five key categories of emotional motives that drive up verdict awards. Second, we will discuss the results of our own research study done on damages. Third, we will look at the two largest components of high damage awards – non-economic and punitive damages – and explore the factors that increase each one; we will also provide recommendations to meaningfully address these damages from a defense perspective.

Emotional Motives That Drive Large Damage Awards

In doing hundreds of surveys, focus groups, and mock trials over the years, we have noticed that there are five main emotional motives that drive large damage jury awards: 1) anger, 2) fear, 3) empathy or sympathy, 4) uncertainty, and 5) activism.

1. Anger is an emotion that plaintiff attorneys try to generate to get jurors upset at a defendant’s actions or inactions, behavior, or attitude; understanding that the angrier a jury gets at the conduct of the defendant, the more money they are likely to award. We often hear jurors in mock trial deliberations speak about punishing a defendant for their conduct, even in cases where no punitive damages are alleged. Jurors may also inflate their damage awards if they become angry with the trial presentations or perceived attitude of defense counsel or defense witnesses.
2. Fear is typically at the center of the often-discussed Reptile theory (Ball & Kennan, 2009). Testimony and evidence about safety and community prompts jurors to place themselves in the shoes of the plaintiffs. While not explicitly a golden rule violation, witness examinations and experts that highlight the dangers in a product, premises, or behavior encourages jurors to worry about how they would feel at risk in a similar situation. Jurors are motivated by this fear to take action to protect themselves and their community through their award.
3. Empathy or sympathy encourages jurors to understand how devastating the defendant’s conduct was on the plaintiff or to actually feel the plaintiff’s pain, with the intent of increasing the awarded damages.
4. Uncertainty is when a jury wants to award money to an injured plaintiff “just in case” they experience problems or need additional medical or psychological care in the future. Modern jurors are keenly aware of the high cost of living and medical care and anticipate those costs will continue to rise. Uncertainty about the stability of medical costs drive jurors to lean toward more generous estimates of future care costs.
5. Activism is where a jury believes that its verdict should have a social message above the actual evidence in a case. This is closely related to a jury’s punitive impulse, except their desire to “send a message” with their verdict may be directed toward the specific defendant or an industry such as trucking, healthcare, pharmaceutical, government agency, or product manufacturer.

Please note that each of these emotional motives also pose a risk for plaintiff attorneys. Juries can grow angry if they feel the plaintiff is overreaching or the attorney is trying to manipulate their emotions. They can fear that a large damage award will drive up insurance rates or product costs or be sympathetic to a doctor that tried to save a patient but failed. Their uncertainty can make them feel that a plaintiff has not met their burden, and some jurors may refuse to award higher damages because of tort reform activism. All of these non-evidentiary and extra-legal reactions can be used by juries to either increase or decrease damages.

New Damages Research Findings

To explore some of the influences on juror damage awards, we conducted an independent research study. The study featured a hypothetical admitted liability case where a woman lost a leg after a serious car accident. Our mock jurors viewed plaintiff and defense presentations and were asked a series of questions after viewing the presentations. We noted several interesting results from the research.

One of our most striking findings from this study was the impact of accountability. We found that, within this admitted liability case, jurors who felt the defense genuinely accepted accountability awarded significantly less damages. Belief that the defense failed to genuinely take accountability massively increased economic and non-economic damage awards – nearly doubling both award values on average. In our view, this suggests that perceiving genuine accountability from the defense reduces a jury’s motivation to “send a message” with a higher damage award.

A second aspect of our study was examining whether jurors want to evaluate damages from a loss-focused view or a recovery-focused view. While plaintiff attorneys tend to center jurors around permanent losses, in our experience, the defense is often put in a better position when jurors are thinking in terms of future recovery for the plaintiff. To explore this issue, we asked jurors directly about their view preferences. When jurors were asked, “In thinking about the future life of a Plaintiff after an injury to evaluate damages, which would you prefer?” they were given two response options. The options were “I would prefer to think about their loss” or “I would prefer to think about their recovery.” A strong majority, 69 percent, of respondents said they would prefer to think about an injured plaintiff’s recovery. This is an interesting result, given that most future damages cases are focused on a pessimistic view of the future life of a plaintiff. Similarly, a vast majority of our respondents said they would prefer to be optimistic rather than pessimistic in evaluating the future life of a plaintiff while assessing damages.

Also, when we checked for potential differences between people who preferred to look at “loss” compared to “recovery,” we found that, consistent with our predictions, respondents who preferred to think about recovery tended to award lower damages. Similarly, we asked jurors which of the following statements they most believed: (1) “after a traumatic loss, people mainly suffer from their loss and do not adapt well to their new life,” or (2) “after a traumatic loss, people may suffer from their loss but can adapt well to their new life.” Jurors who gave lower awards were disproportionately more likely to say that people can adapt well to their new life. Reinforcing the view that more pessimistic future jurors tended to give higher awards, we also asked jurors, “In general, how strong or weak are people when recovering from a traumatic loss?” Jurors could respond on a scale with four options: “very strong,” “somewhat strong,” “somewhat weak,” or “very weak.” Jurors who said that people recovering from a traumatic loss are very weak tended to give higher awards.

In our study, jurors across the board claimed that it would be important to them for the defense to be empathetic and caring toward the plaintiff. When asked how important this is, 55 percent of jurors said that empathy and care from the defense is “very important” and another 34 percent said it was “somewhat important.” Only 11 percent said that it was “not very important” or “not at all important.”

Finally, we wanted to examine jurors’ explicit preferences regarding defense counter-anchors. While some research suggests that hearing a defense counter-anchor tends to either help the defense or have no impact, we were curious to see how jurors themselves reported feeling about the issue. To examine this question, we asked respondents whether they, as jurors, would prefer a defense attorney to offer an alternative damage number to the plaintiff’s number or not. In our study, jurors who gave higher awards were disproportionately more likely to say that the defense should not give a number. It was the jurors who were most receptive to the defense perspective (evidenced by relatively lower awards) who were more likely to indicate the defense should give a number. In other words, offering a defense counter-anchor may serve as a helpful tool for jurors who are relatively more inclined to favor the defense.

Non-economic Damages

On an icy road near Amarillo Texas, an eighteen-wheeler driven by Sarah Gregory jackknifed across the road and killed four people. One of those killed was a truckdriver whose family sued Ms. Gregory and her employer New Prime, Inc. At trial, the jury awarded $16.8 million dollars to the truck driver’s family, of which $15 million were for non-economic damages. In reversing the award in the case Sarah Gregory and New Prime v. Jaswinder Chohan, et al. (p.3), the Supreme Court of Texas stated that, “to guard against arbitrary outcomes and to ensure that damage awards are genuinely compensatory, the plaintiff in a wrongful death case should be required to demonstrate a rational connection, grounded in evidence between the injuries suffered and the dollar amount awarded.”

There is no shortage of news these days about the size and frequency of large jury awards with weekly inventories of product, patent, or personal injury verdicts. In fact, there is evidence that jury verdicts have increased – and it appears that a key driver of these verdicts is non-economic damages specifically (US Chamber of Commerce, 2022; Marathon Strategies, 2024; US Chamber of Commerce, 2023). In looking at the causes of this increase, the US Chamber of Commerce Institute for Legal Reform analyzed 1,376 verdicts over ten million dollars between 2010 and 2019 to better understand the trends behind the growth of “nuclear verdicts” (US Chamber of Commerce, 2022). In their report, they state, “Noneconomic damages and punitive damages accounted for roughly equal shares of the total verdicts (42 percent and 44 percent respectively).” According to the Institute, non-economic damages played a sizable role in driving nuclear verdicts in this period; specifically, in six out of the ten years examined, the total amount of non-economic damages awarded exceeded the total amount of economic and punitive damages combined.

In general, jurors are given very little guidance by judges on deciding non-economic damages (Greene & Bornstein, 2000). California’s jury instruction language on non-economic damages states, "No fixed standard exists for deciding the amount of these non-economic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense" (Justia, 2023). This illustrates a damages paradox and some of the most challenging questions that attorneys and jurors struggle to answer. How do you provide evidence of something as inherently subjective as emotional distress or pain and suffering? How does a plaintiff provide evidence of pain and suffering or emotional distress that they are reasonably likely to incur in the future when no one can really predict a future emotional state? And what is a “reasonable amount”?

Plaintiff Strategies That Drive Up Damage Awards

In the Gregory case, the attorneys made a number of arguments that have become common for plaintiff attorneys in personal injury cases. In referencing the value of a human life, they discussed the cost of a fighter jet, priceless art works, and the number of miles that New Prime’s trucks had driven that year. This is called anchoring, a psychological principle in jury research that describes how jurors, if they have little tangible evidence like medical bills or lost wages, will gravitate toward any number to decide on a “reasonable amount” of non-economic damages (Tversky & Kahneman, 1974). To encourage jurors to award higher damages, plaintiff attorneys sometimes discuss the salaries of star athletes, pop stars, and CEOs, hourly or daily labor rates, the size or revenue of a company they are suing, or the number of products the defendant company has sold in a given year. These numbers are used to anchor jurors to a high request for damages (Campbell et al., 2016).

Another way plaintiff attorneys justify high non-economic damage award requests is by expanding jurors’ perception of the array of award categories. Plaintiffs break down the components of non-economic damages and ask jurors to award specific amounts for each category of care, comfort, loss of enjoyment of life, disfigurement, loss of household services and other categories described in the jury instructions. Plaintiff attorneys are so sensitive to the powerful effect of anchoring that they will often release smaller economic claims if the plaintiff had a low paying job or had smaller hospital bills, fearing that jurors will use that low economic damage anchor to base their non-economic figures.

Defense Reluctance to Discuss Damages

Defense attorneys are often reluctant to offer a defense damages number, fearing that jurors will see it as an admission of liability. However, some research suggests that jurors who are not given a defense counter-anchor may tend to award higher damages if they only have a plaintiff number (Campbell et al., 2016). The adversarial process in a disputed liability case often makes defense counsel naturally skeptical of the plaintiff’s damages claims. If the defense does offer a lower number, it can appear to a jury that the defense is trying to minimize the plaintiff’s harm in an attempt to save money. If a jury does find liability and then believes that the defendant is trying to avoid any responsibility for their actions or is only concerned with minimizing their financial exposure, this can prompt a jury to award higher damages to “teach them a lesson.”

To avoid these pitfalls, we recommend an alternative defense approach for presenting non-economic damages. Instead of merely critiquing the plaintiff’s damages plan, we advise defenses to present their own alternative plan for addressing the plaintiff’s harm and meeting their future needs. This plan should be a positive, forward-thinking approach to assist the plaintiff in recovering from their injuries and to move forward in their new life.

Defense Restorative Damages Plan

Traditionally, plaintiff’s damages envision the loss of as opposed to a change in their current life circumstances. To understand this important distinction, think about a significant traumatic event that has happened in our own lives. If we are injured, have a health problem, lose a job, or a loved one, there is hardship, distress, and pain. But we also adapt to try to make the best of the new circumstances in our lives. If we do experience pain or loss, it is temporal. We take medication to alleviate discomfort or pain. If we feel depressed, sad, anxious, or stressed, we experience it for distinct periods, sometimes short, sometimes longer.

Yet, in serious injury lawsuits, plaintiff attorneys often present a static picture of their injured client, forever frozen in their loss, ceaselessly suffering for the rest of their lives. Defense attorneys are then put in the position of doubting or minimizing plaintiff’s injuries, which comes across as insensitive, unsympathetic, and cold to a jury.

In contrast, defense attorneys can be sympathetic and still seek to accurately understand a plaintiff’s loss and prospects for recovery to quantify the loss and provide a plan. In deposition, there are a number of questions that can establish a different role for the defense attorney in quantifying a plaintiff’s future non-economic loss.

Deposition Questions for an Injured Plaintiff:

• What did you do before that you cannot do now? Would you like to be able to do [insert activity] again or something like that?
• Would you be willing to get help and figure out different ways to help you cope with what happened to you?
• Do you want to live a productive and satisfying life? What would that look like for you?
• What do you want to do with your life?
• What are some of the things that make you happy? Do you want to be happy?
• When you are in a bad mood, what are some of the ways that you change your mood?
• Have you ever been injured before or had to deal with recovery from an injury? How did you get through that?
• Have you ever had a tragedy, trauma, or loss in your life before this incident? How did you deal with that?
• Do you want to live a life that you choose as opposed to one that is chosen for you?
• Would you like to be able to make choices to make your life more comfortable, productive, and satisfying?
• Do you want us to help you?
• If this case settled or you were awarded money in a jury trial, what would you use that money for?
• Do you think this incident defines you for the rest of your life? Why or why not?

These questions are designed to shift the thinking of the plaintiff from a negative to a more positive perspective and to gain information that would help to construct a tangible recovery plan for the plaintiff. More importantly, it shifts the defense attorney’s role on damages to someone who is also looking out for the best interests of the plaintiff. This can contradict the portrait of an uncaring defense lawyer who is only interested in doubting the plaintiff’s injuries or saving money. By itself, this role shift can facilitate settlement.

Once the attorney has gotten more specific information about the plaintiff’s before-life and how they would like their life to look moving forward, the defense can create a specific plan to give jurors more concrete numbers to compensate the plaintiff for past and future non-economic damages.

An Effective Defense Damages Response

We recently worked on a wrongful death admitted liability case. A young woman who was being treated at a hospital fell, the nursing staff did not appreciate the severity of her injury, the young woman suffered a large subdural hematoma, and died. Her older brother brought a loss of consortium claim. The plaintiff’s attorney was a noted lawyer who had won numerous eight and nine figure cases.

In trying to quantify the non-economic losses, we started with the jury instruction on loss of consortium. It detailed that the plaintiff was entitled to recover for the loss of “love, care, companionship, and guidance” that his sister would have contributed to him had she lived. For that, we asked the jury to examine their relationship; their frequency of contact and the level of intimate knowledge they had about each other’s lives. We acknowledged that money could never compensate a person for the loss of a loved one, but since this was the only form of compensation the courts recognized, we would do our best to help the jury do this very difficult job. By doing this, we wanted to position ourselves not as advocates for the hospital, but as assistants to and resources for the jury in evaluating the loss.

The plaintiff and his sister did not text or email frequently or exchange pictures, but they spoke on the phone every couple of weeks. They met at a family gathering every few years but lived across the country from each other. We discussed the nature of adult sibling relationships and how they change over time; how we develop our own families and circle of friends for support. While we are in contact with family and always may feel close, it is usually not an everyday experience. There were struggles and challenges in the sister’s life that the brother was not aware of. We told the jury that any amount had to be based on evidence, not speculation. The evidence illustrated that the plaintiff and his sister spoke every couple of weeks and met at a family gathering every few years. While they were clearly fond of each other, there was not much evidence of their close emotional bond or that she provided a lot of care and guidance to her brother. We also advised them that they would not be deciding on the plaintiff’s or other family member’s grief, loss of income or medical bills, and that their award must not reflect a punitive “send a message” award. In closing arguments, plaintiff’s counsel asked the jury for a range of between $21 - $42 million. By giving the jury clearer criteria for how to break down and evaluate the loss, the jury came back with a $2.5 million award – far below plaintiff settlement offers.

All of these characteristics of the plaintiff’s life prior to the accident – their relationships, activities, recreations, work, aspirations, and resilience – become tools to help create a restorative damages plan. With a restorative damages plan, the defense is proposing specific costs for specific needs rather than generalized numbers, which can look like the defense just wanting to save money. Having a clear understanding of the claimed loss also carries an important message for plaintiffs. It communicates that the defense acknowledges what the plaintiff has been through and wants them to recover. This helps a plaintiff feel as if they have been seen and heard, which communicates accountability, even if the defense is disputing liability.

Tying Damages to Concrete Remedies

Part of a strong approach to non-economic damages in our experience is to encourage jurors to question what these damages are for. Jurors need to be instructed that non-economic damages are not made to punish the defendant; they are not made to protect a plaintiff against all possible futures; they are not simply a number that “feels right.” Damages should be based on actual evidence and should be for something specific that will help the plaintiff.

This approach comes into play when deposing and cross-examining plaintiffs at trial. Jurors need to hear some of the specific things that the plaintiffs hope might make life better for them. In closing arguments, these suggestions can be reviewed with the jury, and the defense can suggest additional healing remedies as well. This can include traditional and alternative therapies. It can include physical therapy, occupational therapy, cognitive behavioral therapy, psychological counseling, gym memberships, educational funds, and the like. When jurors are persuaded to embrace this view, we find that it tends to sizably bring down their non-economic damage awards by focusing them on concrete, helpful, (and much more affordable) services, compared to abstract concepts (like the value of a life) which are more vulnerable to inflation by plaintiff anchors.

There are numerous other strategies to deal with past non-economic damages instead of disparaging a plaintiff for not seeking psychological counseling or medical treatment, but we will save that for another article. However, it is advisable to seek psychological experts who can perform an IME evaluation of the plaintiff and opine on the research of psychological resilience. Although plaintiffs may claim a prior trauma was exacerbated by their current event, the expert can also help to delineate how a jury might be able to distinguish the difference in pain from a prior injury or the difference in emotional distress from a prior trauma.

Punitive Damages

In January of 2024, a Philadelphia jury handed down a $2 billion punitive damage verdict against Monsanto in a case involving their weed killer Roundup (McKivison v. Monsanto). In May of 2019, another jury in Oakland, California awarded a couple over $2 billion dollars in punitive damages in a Roundup case (Pilliod v. Monsanto). When a Monsanto attorney asked the jurors after the trial: “What did you want to see from us?” a juror replied, “I want you to show that it’s safe. I want you to get up there and drink it, I guess.” This hostile comment tells you how angry the jurors were with Monsanto at the end of the trial.

In that case, the plaintiff attorneys argued that Monsanto followed the same script as all companies that may have a cancer-causing product: they find out their product is harmful, they buy, bury, and fabricate the science to avoid regulation by the FDA, and they warn their employees but not the public about the harms of their product. The plaintiff attorney said that Monsanto “was a company born in fraud.” The defense then spent most of their closing arguing the science that the plaintiffs just claimed was fraudulent. They also tried to discredit all the plaintiff’s evidence and witnesses, thus reinforcing the plaintiff’s characterization that Monsanto would attack anything and anyone that showed their product was harmful. Plaintiffs then told the jury they had “the power to set things straight” and suggested a punitive damage award of $1 billion. The jury doubled that.

While this is an oversimplification of the numerous variables that contribute to large verdicts like the Monsanto cases, there are punitive aspects to every case because jurors are judging the conduct of both the defendant and the plaintiff and evaluating their subjective intent. While factual evidence tends to be centered around events or behavior, jurors always want to know why a plaintiff or defendant acted the way they did. In a punitive damages case, jurors look to the defendant’s intent to determine whether they acted with fraud, malice, oppression, or reckless disregard for the safety or rights of the plaintiff.

Institutional distrust is another element that has contributed to large punitive damage awards. Recent polls suggest that the motivations of all institutions, whether they are companies, government or public entities, or even the courts themselves are viewed with great skepticism by jurors (Jones, 2022). Much of the time, this sentiment is fueled by a plaintiff attorney’s characterization of a greedy, uncaring, or overly bureaucratic defendant. In trial, jurors often hear defense platitudes or tropes that come in the form of the “good company” story. This often sounds like a commercial to jurors rather than giving them an authentic portrait of how the company works, the challenges they have faced, and what they have done to overcome those problems. If jurors dismiss the good company story in favor of the greedy corporation story, it becomes much easier for plaintiffs to argue that the defendant doesn’t “get it” and needs the jury to send a loud message. As such, company and expert witnesses need to be trained to discuss the honest effort to look at and address the problem rather than be primed with soundbites and spin.

Punitive damages also create the subsequent remedial measures problem for defendants. Jurors want accountability and positive change from corporate defendants. If jurors are to believe that a company or institution is aware of a problem, they have to be shown that the defendant actually took measures to address the problem. If a company has taken steps and changed procedures, jurors want to hear that it is an earnest effort to fix a problem rather than a reluctantly applied band-aid to protect themselves from future liability. If no new steps have been taken as subsequent remedial measures or a judge disallows that evidence, jurors need to hear a defense lawyer truly acknowledge that the defendant has heard the jury and will be taking steps to address the issue in the future.

It is a difficult argument to make. Many times, defense counsel believes that plaintiff’s counsel has just appealed to a jury’s emotions or they themselves disagree with the liability verdict. As a result, the defense implicitly suggests to jurors that, “The liability award is enough of a message.” Or “You were tricked.” “You got it wrong.” Or “We don’t have that much money.” These messages can often inflame a jury to give higher awards.

In looking at punitive damage awards, the emotional motives of anger, fear, and activism that we discussed earlier in the article become the greatest influences on large awards. These emotions often overcome the “clear and convincing” standard that the law demands for punitive damages. As such, it is important to look at not only the evidence and testimony, but to present the liability case in a different manner. If defense counsel approaches the trial as a partnership with the jury to investigate what happened, they and the defendant look more reasonable, which then reflects on the original conduct in question. This attitude lowers the temperature of the emotional heat in a trial, which can also lower awards.

Conclusion

Deciding on appropriate damages is one of the most difficult challenges for a jury, especially in non-economic or punitive damages cases. By better understanding the discreet components outside the law and evidence that jurors use to decide cases, counsel can plan better in the discovery process to provide jurors with more substantive methods to come to a reasonable number. They can also better evaluate the risks of a case when determining an appropriate settlement amount – or when determining whether a case should continue to trial. Taking all of these factors into account can be a difference of millions of dollars in estimated case value.

References

Ball, D., & Keenan, D. (2009). Reptile: The 2009 manual of the plaintiff’s revolution. Balloon Press.

Campbell, J., Chao, B., & Robertson, C. (2017). Time is money: An empirical assessment of noneconomic damages arguments. Washington University Law Review, 95(1). https://openscholarship.wustl.edu/law_lawreview/vol95/iss1/5

Campbell, J., Chao, B., Robertson, C., & Yokum, D. V. (2016). Countering the plaintiff’s anchor: Jury simulations to evaluate damages arguments. Iowa Law Review, 101(2), 545-567. https://ilr.law.uiowa.edu/sites/ilr.law.uiowa.edu/files/2023-02/ILR-101-2-Campbell.pdf

Greene, E., & Bornstein, B. (2000). Precious little guidance: Jury instruction on damage awards. Psychology, Public Policy, and Law, 6(3), 743–768. https://www.academia.edu/7686024/Precious_little_guidance_Jury_instruction_on_damage_awards?auto=download&email_work_card=download-paper

Justia. (2023). CACI No. 3905A: Physical pain, mental suffering, and emotional distress (noneconomic damage). https://www.justia.com/trials-litigation/docs/caci/3900/3905a/

Jones, J.M. (2022). Confidence in U.S. institutions down: Average at new low. Gallup. https://news.gallup.com/poll/394283/confidence-institutions-down-average-new-low.aspx

Marathon Strategies. (2024). Corporate verdicts go thermonuclear. https://marathonstrategies.com/wp-content/uploads/2023/03/Corporate-Verdicts-Go-Thermonuclear-0313.pdf

The Law Dictionary. (n.d.). What percentage of lawsuits settle before trial? What are some statistics on personal injury settlements? https://thelawdictionary.org/article/what-percentage-of-lawsuits-settle-before-trial-what-are-some-statistics-on-personal-injury-settlements/

Tversky, A., & Kahneman, D. (1974). Judgment under uncertainty: Heuristics and biases. Science, 185(4157), 1124–1131. https://www2.psych.ubc.ca/~schaller/Psyc590Readings/TverskyKahneman1974.pdf

U.S. Chamber of Commerce Institute for Legal Reform. (2023). Roadblock: The trucking litigation problem and how to fix it. https://instituteforlegalreform.com/wp-content/uploads/2023/07/Roadblock-The-Trucking-Litigation-Problem-and-How-to-Fix-It-FINAL-WEB.pdf

U.S. Chamber of Commerce Institute for Legal Reform. (2022). Nuclear verdicts: Trends, causes, and solutions. https://instituteforlegalreform.com/wp-content/uploads/2022/09/NuclearVerdicts_RGB_FINAL.pdf

* Decision Analysis