Big Damage Awards: A Technique That Drives Jurors Toward Big Numbers

Estimated read-time: 4 minutes

Part 4 in a series on jury decision-making and bias.

By Joani Benoit

When juries are asked to award money for harm to individuals, a significant component of the award may be unrelated to economic damages. These awards are not a matter of simple math.

How do juries make such decisions when the losses are subjective? How does one value a life, or the shortening of a life, or a life in a wheelchair? How does one put a dollar amount on fear, loneliness or the inability to sleep well at night?

While we all know that there are many ways to enhance the sympathy a jury might feel for a plaintiff or to cultivate anger toward a defendant with deep pockets, you may be unaware of one of the most powerful ways to impact a number when the person making the decision has no related knowledge or experience to draw upon. The method is called anchoring, described well in Daniel Kahneman’s book, Thinking Fast and Slow.

Imagine anchoring a sailboat in a bay. You drop anchor after considering the likely direction of drift and the length of your anchor line. Your boat will not hover directly over the anchor, but you will drift only so far. The anchor determines the final position of the boat, once current and wind are accounted for.

Kahnmen and Amos Tversky showed through experiments that decisions and estimates are dramatically impacted by the introduction of non-related data. In the most famous experiment, they rigged a wheel-of-fortune so that when spun it would land on either the number 65 or the number 10. Study participants believed that the wheel was not rigged and had equal likelihood of landing on any number between 1 and 100. After spinning the wheel and generating what they believed was a random number, the participants were asked to answer a question few had any knowledge of: the percent of African nations that were members of the UN.

Even though they believed the wheel spin to be a random event, the study cohort that saw the wheel land on 65 gave an average guess of 45% of African nations as UN members; those who saw the wheel land on 10 estimated an average of 25%. The number the wheel was rigged to show served as an anchor, from which the estimate would drift only so far.

The effect has been repeated in subsequent experiments. German judges reading the rap sheet of a fictional shoplifter gave a sentence averaging 5 months when they rolled dice loaded to land on 3; the judges who rolled dice rigged to total 9 sentenced the fictional shoplifter to 8 months, +60% over the judges in the other group. These judges had an average of 15 years of experience as judges. Remember from my last article the decision fatigue effect that drove the likelihood of a positive parole decision from 0% to 65% depending on time of day. Again we see that even judges are not immune to the flaws in human thinking processes. Their decisions were signficantly impacted, quite literally, by a roll of the dice.

Similar results came with in a test of experienced realtors given the task of estimating the value of a home for sale, and on individuals at a science museum asked to estimate the height of the world’s tallest Redwood. In both cases, the estimates given correlated significantly with an arbitrary number given as a starting point.

Washington plaintiff attorney Paul Luvera used this method in a closing I witnessed. He casually referenced the sale of a work of art he had “just seen in the paper” for $87.2 million. He introduced this figure as part of his musing about how to value something for which there was no substitute. While he also brought in a news crew and told the jury that what they decided that day would be either be long remembered, or if they awarded a token amount, soon forgotten, I believe the reference to the painting had the greatest impact in driving the jury to a sizable award. I believe this not only because Kahneman and Tversky’s work, but because in our jury research we used the same anchoring technique with no television cameras or promises of immortality, and saw like awards.

How can one offset such a strong and easy to employ effect? I have some ideas based in Kahneman’s research that I’d be happy to share with you. If you have a case in which the jury will be asked to give a sizable award that will have a significant non-economic damage component, give me a call! We can discuss your case, talk strategy, and run an affordable jury study that could save your client millions.

And now for something completely different…

Overcoming fear. We can always use a little inspiration. 

1:50 minute video.

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The Fascinating and Frightening Impact of Timing upon Decisions

Part 3 in a series on jury decision-making and bias.

By Joani Benoit, Trial Vision, Inc.

Before moving on to the promised article on framing, let’s take a look at a fascinating and frightening phenomenon: decision fatigue. Frightening, because of the unexpected and dramatic impact upon decisions of timing.

By way of background (for more detail and to see prior articles,  scroll down), our default thinking mode is System 1 – fast, intuitive, automatic – thinking. The reason is that we are “cognitive misers”, a term coined by Susan T. Fiske and Shelley E. Taylor. A body of experiments shows that System 2 thinking requires mental effort, and that we have a limited store of energy for such effort. After periods of cognitive strain, study participants have depleted will power and lowered ability to perform subsequent mental tasks.

The work differentiates decision-making from other cognitive efforts. In a recent article in the New York Times Magazine, John Tierny describes a study in which real-world car buyers were offered a huge variety of options in purchasing a car. As they chose among the options for color, wheel style, horsepower, etc., they became fatigued and began to select the default option for each feature. The researchers were able to manipulate the order in which the features were offered to yield an extra $2000 per purchase. As Tierny reports:

“Whether the customers paid a little extra for fancy wheel rims or a lot extra for a more powerful engine depended on when the choice was offered and how much willpower was left in the customer.”

This is all very interesting research, but could it possibly be a significant factor in real-world jury verdicts?

If we could prove that such a phenomenon affects experienced judges, whose very jobs demand objectivity in decision-making, would you be surprised?

If you are representing Israeli prisoners seeking parole, listen up. And if not, well, listen anyway, because while it will take a bit of work to integrate the following information into your trial work, the potential impact is considerable. And as you read the following, also consider other situations in which you are advocating for a decision: negotiations, mediation, and interactions with your clients.

study published last year by Jonathan Levav of Stanford and Shai Danziger of Ben-Gurion University found that the time during which a convict’s application for parole was considered had a dramatic impact on the likelihood that parole would be granted, adjusting for the severity of the initial crime and other relevant factors.

We find that the likelihood of a favorable ruling is greater at the very beginning of the work day or after a food break than later in the sequence of cases. This pattern is readily evident …the likelihood of a ruling in favor of a prisoner spikes at the beginning of each session—the probability of a favorable ruling steadily declines from ≈0.65 to nearly zero and jumps back up to ≈0.65 after a break for a meal.”

Think about that: This single factor, unrelated to the merits of the individual cases, drove success rates from near zero to 65%. How can one ignore something of this magnitude?

If decision fatigue is evident in research and in practice­–what do we do with that information? How do we use it to improve our ability to drive decision-makers to a favorable outcome?

Some obvious differences can be drawn between the above examples and the ones we face at trial: our judges and juries have to listen for weeks on end to testimony and evidence about a single case, rather than one discreet file to be considered and decided upon at a time. Despite this difference, relevant to us is that mental energy ebbs and flows, with a dramatic impact on decision-making.

Another difference between our work and the study is that our audience most often comprises jurors, who unlike the judges in the study are not trained to be impartial and who are not used to the mental exercise of making such decisions. This suggests to me that our jurors would be more susceptible (or at least not less so) to the effects of peaks and valleys in mental energy.

As the study authors explain, Prior research suggests that making repeated judgments or decisions depletes individuals’ executive function and mental resources, which can, in turn, influence their subsequent decisions. … Sequential choices and the apparent mental depletion that they evoke also increase people’s tendency to simplify decisions by accepting the status quo.”  

In the case of the prisoners, status quo means denying parole and deferring the decision until the next review. In a commercial matter, particularly where there are claims and counter-claims, status quo may be “a pox on both your houses”, which in many cases is functionally a defense verdict.

At this point, if you’ve had a lot of decisions to make today, you may be thinking that there is no real way to act on this information and therefore you will close this window and move on to other things. But if you’ve still got some steam, consider how a trial lawyer might utilize this information.

First, keep track of your jury’s cognitive workload. You or someone on your team should have her/his finger of the pulse of the jury: understand what they have picked up, what they have missed, what needs reinforcement and when they are ripe to be moved to a decision point. When something important gets lost, you need to find a way to get it back in front of them.

Second, realize that the timing of expert witness testimony could have a major impact on the degree to which jurors can absorb and use the information. If it’s complex testimony and the jurors are tired, they will resort to the simplest way to incorporate the content into their mental calculus of the case: ignore it or swallow it whole– depending on how the testimony fits with their Type 1 biases and intuitions.

Third, understand that it requires a great deal of mental energy to revise a belief. If you are asking the jury to accept something that goes against the mental grain, 3 o’clock in the afternoon is not the time to do it.

Fourth, we know that jurors make decisions throughout the trial, not solely after closing statements. Plan to move the jury to make decisions when you know juror energy is high. Set them up in opening to understand the discrete decisions they will have to make, and label those decisions with specific terms and images you will use throughout the trial. When evidence or testimony relates to those key decisions, call the jury to attention with the use of these terms and images with your expert. In essence you are saying, “Hey jurors, wake up. This is that key issue regarding the intent of the parties when they formed the contract and this guy is about to tell you something important.” When they hear the testimony their mental energy will go to determining how that information affects their decision on that issue. Thus the effort of deciding the case is strategically allocated throughout the trial, rather than left until all the information is in.

Fifth, consider decision fatigue when structuring the verdict form. In mock trials, I see the phenomenon in action: jurors will go hammer and tong over the first question. When a small group of jurors fights and wins an uphill battle on question 1, they will often relax and reconcile with question 2. They are tired of persuading the group, the group may be getting tired of them, and having won one they are feeling less urgency to argue their point-of-view.

In some cases the best order is to start with the easy decisions and build up momentum, while in others where all the decisions are tough it would be wise to get the toughest fight up first, when everyone has the required energy to wrestle with a tough decision and possibly make a status quo breaking move. Of course getting your case in front of a representative group of individuals via a mock trial can be very helpful in informing such decisions.

Understanding and monitoring your trier-of-fact’s mental energy is not just one more small thing to add to the already significant burdens on the trial team. The leverage this knowledge gives you is too significant to ignore.

And now for something completely different…

This time we have a musical interlude. Like the fearless base jumpers from the last “completely different” video, this is a person with the passion and drive to acquire some amazing skills. Enjoy!


Who’s the wonk?

Joani Benoit is a trial consultant with 21 years of experience. She lives in Seattle, Washington with her husband and two children.

Like to talk about a case you have? Call me: 206 284-8320, or email me:jbenoit@trialvis.com

Interested in more information about jury decision-making? I’d be happy to tailor a mini-seminar to your group’s interests.

View the Trial Vision website