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“Gisty” Intuition: How Jurors Generate Awards

Updated: Nov 7, 2020

In Texas, a leg is worth $72,480. An index finger, $19,866. But what is a concussion worth? What about a lifetime of pain and suffering? There are many types of injuries that are difficult to assign a monetary value, and yet jurors are often expected to do so in civil cases. Furthermore, due to the secrecy of jury deliberations, we have little idea how jurors complete this task and therefore can’t offer much help. Authors Reed, Hans and Reyna sought to change this. As an extension of their first study on numeracy (see our first blog post), Reed and colleagues in Accounting for Awards: An Examination of Juror Reasoning behind Pain and Suffering Damage Award Decisions stepped into the virtual deliberation room and investigated the process by which individual mock jurors generated damage awards.

The legal system rests on the premise that jurors engage in rational decision-making, using only logic and evidence to generate a decision. However, psychological research shows that jurors are often guided by intuition and cognitive biases. According to Fuzzy Trace Theory, people use two memories— verbatim and gist— to encode material. Juror decision-making generally consists of gist-based intuition, which treats trial material more like a narrative than a tape-recording. This gist memory is mostly informed by the legal context, but it can be influenced by extralegal factors as well.

In this study, mock jurors read one of two personal injury cases that varied based on the severity of the injury (mobility issues vs. spinal injury) and the length of its effect on the plaintiff (two years vs. life-long). After awarding the plaintiff a damage award, jurors were asked to give their subjective reasoning behind that award. According to this study, the three best predictors of their damage award were mention of the anchor, the interference, and the favoritism:

The researches found that providing jurors with a meaningful anchor (a person’s income) influenced damage awards, compared to a meaningless anchor (cost of courtroom renovations) and no anchor (control condition). Namely, jurors in the high-anchor condition gave significantly higher damage awards than those in the control conditions. The same effect occurred with the mention of the injury’s interference. That is, mock jurors who mentioned how the injury interfered with the plaintiff's life (education, job, marriage, etc.) gave higher damage awards than mock jurors who did not. Lastly, researchers found that the money followed favoritism. Jurors who expressed favoritism towards the plaintiff gave her a higher award. Conversely, jurors who favored the defendant gave significantly lower damage awards. In fact, these jurors used the defendant’s (lack of) liability in their decision-making, even though liability was already determined and should not have been a deciding factor. This exemplifies how jurors’ own gist-based perceptions of fairness supersede the law (see civil jury nullification).

It was clear that jurors use their gist memory rather than verbatim memory to make awards decisions. However, many still found it difficult to assign a monetary value to the plaintiff’s pain and suffering. While some used mathematical calculations as a guide, others thought pain and suffering were priceless or incalculable. This underscores the simple fact that jurors need more guidance. Namely, attorneys need to help jurors by translating their gist judgements into verbatim awards. For defense attorneys, this could mean making the defendant appear more sympathetic in order sway to jurors’ favoritism toward the defendant. For plaintiff attorneys, this could mean painting a picture of how much an injury interfered with the plaintiff’s life and then offering a meaningful anchor for jurors to latch on to.

Civil damage award cases often get a bad reputation. Jurors are accused of giving undeserving plaintiffs over-the-top awards. But the real problem is not the awards, it’s the instructions. It’s time to start using psychological research to improve upon the definition of pain and suffering so that jurors can use evidence, rather than intuition, in their decision-making.

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