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12-1-2011
To Dollars from Sense: Qualitative to Quantitative
Translation in Jury Damage Awards
Valerie P. Hans
Cornell Law School, valerie.hans@cornell.edu
Valerie F. Reyna
Cornell University
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Recommended Citation
Hans, Valerie P. and Reyna, Valerie F., "To Dollars from Sense: Qualitative to Quantitative Translation in Jury Damage Awards"
(2011). Cornell Law Faculty Publications. Paper 638.
hp://scholarship.law.cornell.edu/facpub/638
To Dollars from Sense: Qualitative to
Quantitative Translation in Jury
Damage Awards
jels_1233 120..147
Valerie P. Hans and Valerie F. Reyna*
This article offers a new multistage account of jury damage award decision making. Drawing
on psychological and economic research on judgment, decision making, and numeracy, the
model posits that jurors first make a categorical gist judgment that money damages are
warranted, and then make an ordinal gist judgment ranking the damages deserved as low,
medium, or high. They then construct numbers that fit the gist of the appropriate magni-
tude. The article employs data from jury decision-making research to explore the plausibility
of the model.
I. Introduction
This article proposes a new model of perhaps the most controversial aspect of the civil
jury’s decision making, its determination of compensatory and punitive damage awards.
As Edie Greene and Brian Bornstein write in Determining Damages: “Our understanding of
how people translate an individual’s misfortune into a monetary value is rudimentary
and elusive....Understanding the psychological processes underlying these complex
decisions is of significant import.”
1
The article builds on theory and research by psycholo-
gists, economists, and legal scholars to create a comprehensive account of jury damage
award decision making. A major goal of this model-building is to identify strengths
and limitations of lay citizen decision making about dollar awards. The article also
explores the implications of the model for reforms to the jury damage award decision
process.
*Address correspondence to Valerie P. Hans, Professor of Law, Cornell University Law School, Myron Taylor Hall,
Ithaca, NY 14853; email: vh42@cornell.edu. Reyna is Professor of Human Development and Psychology, Cornell
University. Both authors are Fellows of the Cornell University Institute for the Social Sciences, 2009–2012.
We thank the ISS Judgment, Decision Making and Social Behavior team members for their collegial and insightful
comments on our work during the fellowship period. We also thank Edie Greene and Jeffrey Rachlinski for their
thoughtful comments on a previous draft of this article, and Francoise Vermeylan for invaluable statistical advice.
1
Edie Greene & Brian H. Bornstein, Determining Damages: The Psychology of Jury Awards 173 (2003).
Journal of Empirical Legal Studies
Volume 8, Issue S1, 120–147, December 2011
120
II. Background:Jury Damage Awards as a Lightening
Rod for Criticism
The jury as an institution is highly regarded by the public. However, Americans are more
enamored of the criminal jury than the civil jury.
2
Many perceive civil jurors as overly
generous to plaintiffs, hostile to large businesses and corporations, and influenced by
biases and prejudices.
3
Their awards are seen as erratic and unprincipled.
4
Large jury
damage awards receive disproportionate coverage in the media.
5
Lawyers and their
clients regularly express dismay over what they perceive as the rampant unpredictability
of jury awards, which makes it difficult for them to assess in advance whether to proceed
with a case or to settle to avoid a more damaging loss from a substantial jury verdict.
6
Responding to interest group demands to impose limits on damage awards, state legis-
latures across the country have passed a variety of reforms over the last few decades,
including dollar limits or caps on noneconomic damage awards, total damage awards,
and punitive damage awards.
7
New limitations have also emerged in the course of liti-
gation over punitive damages. In a number of decisions over the last two decades, the
U.S. Supreme Court has examined the constitutional dimensions of punitive damages;
many commentators believe that concern about irrational jury punitive damage awards
motivated the Court.
8
In our view, these legislative and doctrinal changes have not usually been informed
by a clear and complete understanding of how juries decide on money damages. It is not
surprising, then, that some reforms have had unexpected effects. For instance, introducing
2
Valerie P. Hans, Attitudes Toward the Civil Jury: A Crisis of Confidence? In Verdict: Assessing the Civil Jury System
248 (Robert E. Litan ed., 1993).
3
Id. at 257–61; see also Valerie P. Hans, Business on Trial: The Civil Jury and Corporate Responsibility 58–67 (2000).
4
Hans, Business on Trial, supra note 3, at 58–67.
5
Robert J. MacCoun, Media Reporting of Jury Verdicts: Is the Tail (of the Distribution) Wagging the Dog? 55 DePaul
L. Rev. 539 (2006).
6
Valerie P. Hans & Theodore Eisenberg, The Predictability of Juries, 60 DePaul L. Rev. 375 (2011); Jane Goodman-
Delahunty, Pär Anders Granhag, Maria Hartwig & Elizabeth F. Loftus, Insightful or Wishful: Lawyers’ Ability to
Predict Case Outcomes, 16 Psychol. Pub. Pol’y & L. 133 (2010); Jonas Jacobson, Jasmine Dobbs-Marsh, Varda
Liberman & Julia Minson, Predicting Civil Jury Verdicts: How Attorneys Use (and Misuse) a Second Opinion,
J. Empirical Legal Stud. (this issue).
7
See Ronen Avraham, Database of State Tort Law Reforms (DSTLR 4th) (Sept. 2011) <http://ssrn.com/abstract;
902711>. Similar reform efforts undertaken at the federal level have been stymied thus far. See Michael P. Allen,
A Survey and Some Commentary on Federal “Tort Reform,” 39 Akron L. Rev. (2006); Robert S. Peck, In Defense
of Fundamental Principles: The Unconstitutionality of Tort Reform, 31 Seton Hall L. Rev. 672 (2000–2001); Effects
of Tort Reform: Evidence from the States (Congressional Budget Office, June 2004) <http://www.cbo.gov/
doc.cfm?index=5549&type=0&sequence=2>.
8
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008). See also Catherine M. Sharkey, The Exxon Valdez Litigation
Marathon: A Window on Punitive Damages, 7 U. St. Thomas L.J. 25 (2009) (summarizing Exxon Valdez litigation).
Qualitative to Quantitative Translation in Jury Damage Awards 121
caps on damage awards has had the paradoxical effect of increasing average damage awards
in some jurisdictions.
9
III. Research on Jury Damage Awards
Responding to the public and legal attention devoted to high-profile jury awards, legal
scholars, psychologists, and economists have taken up the subject of jury damage award
decision making. Some of that work indicates that jurors face great difficulty in fairly and
equitably deciding on money damages, whereas other research offers a more optimistic
picture.
10
Jurors report being deeply challenged by the task of arriving at damage awards.
11
Valerie Hans interviewed 269 civil jurors who had decided cases in which at least one
of the litigants was a corporation or a business. The juror interviews included a host
of questions about how the jury went about deciding on compensatory damages and, if
applicable, punitive damages. The interviews confirmed that jurors were often at sea as they
began to discuss what would constitute an appropriate award in the case. By their own
account, many jurors entered the jury deliberation room with no specific figure in mind.
Numbers emerged only during the course of deliberation, as they discussed the case
particulars and the plaintiff’s injuries with the other jurors.
12
Even then, jurors reported
that it was challenging to come up with dollar amounts that corresponded to the injury. As
one juror, who decided a medical malpractice case in which the plaintiff had half of one
lung mistakenly removed, reflected on the process:
Out of anything I can say I hated, that was the part I hate the most. Because I just don’t think it
was fair that we had to put a dollar amount on this...weweren’tgiven a minimum...weweren’t
given a maximum. We were told to go into the room. Lock yourselves in there and don’t come out
until you have a dollar amount. And I thought that was very unfair, especially when we were just
regular everyday citizens. And we have no idea what is ordinary and customary in a case like
9
Ronen Avraham & Álvaro Bustos, The Unexpected Effects of Caps on Noneconomic Damages, 30 Int’l Rev. L. &
Econ. 291 (2010); Catherine Sharkey, Crossing the Punitive-Compensatory Divide, in Civil Juries and Civil Justice:
Psychological and Legal Perspectives 79 (Brian H. Bornstein, Richard L. Wiener, Robert Schopp & Steven Willborn
eds., 2008).
10
For summaries of the research on jury damage awards, see Greene & Bornstein, Determining Damages, supra note
1; Valerie P. Hans & Stephanie Albertson, Empirical Research and Civil Jury Reform, 78 Notre Dame L. Rev. 1497
(2003); Jennifer K. Robbennolt, Punitive Damages Decision Making: The Decisions of Citizens and Trial Court
Judges, 26 Law & Hum. Behav. 315 (2002). When it comes to experiencing difficulty in valuing injuries, juries have
company at the highest levels of government. See, for example, Binyamin Appelbaum, A Life’s Value? It May Depend
on the Agency, NY Times, Feb. 17, 2011, at A1, A3 (finding that the dollar value of a human life varies for different
government agencies).
11
Hans, Business on Trial, supra note 3.
12
Nicole L. Mott, Valerie P. Hans & Lindsay Simpson, What’s Half a Lung Worth? Civil Jurors’ Accounts of Their
Award Decision Making, 24 Law & Hum. Behav. 401 (2000).
122 Hans and Reyna
this...AndIthinkifwecouldhavehadsometypeofguide,monetary guideline, as to okay this
is the minimum, this is the maximum, and then you decide. But I mean it was like, if we said he’s
awarded a dollar was this satisfactory? We didn’t know.
13
A collaborative research group of economists, psychologists, and law professors
undertook one high-profile project that examined the process of punitive damage award
decision making by juries.
14
The researchers began by noting that dollar awards are likely
to be highly variable because they are assessed on an unbounded scale. The minimum is
set at zero, but there is, at least theoretically, no maximum amount.
15
This contrasts with
bounded scales, where both the minimum and maximum levels are established in
advance. The research group adopted a mock jury approach to examine how juries reach
punitive damages decisions. They concluded on the basis of their experimental research
that although mock jurors showed substantial consensus about the relative merits of the
different cases, their dollar awards varied dramatically.
16
One cause of the variation, the
authors say, is that individuals translated their sense of outrage onto the unbounded
dollar scale differently, so that people with similar judgments about the wrongfulness
of the defendant’s behavior chose different dollar values. In their study, the group
decision-making process, rather than producing an average of individuals’ different
award preferences, resulted in more extreme awards in the direction of the group’s
majority.
17
Outside the jury decision-making context, research on citizen competence with
numbers gives rise to concern about the ability of laypersons to decide damage awards
rationally. Work on the public’s mathematical proficiency, or numeracy, routinely finds
that people have trouble with numbers.
18
An estimated 93 million Americans are not
proficient with numbers, and low numeracy (i.e., the inability to understand and use
13
Mott et al., supra note 12, at 409.
14
Cass R. Sunstein, Reid Hastie, John W. Payne, David A. Schkade & W. Kip Viscusi, Punitive Damages: How Juries
Decide (2002).
15
Id.at41.
16
Id. at 43–61 (describing study results).
17
Id. See also Cass R. Sunstein, Daniel Kahneman, David Schkade & Ilana Ritov, Predictably Incoherent Judgments,
54 Stan. L. Rev. 1153 (2002); Neil Vidmar, Experimental Simulations and Tort Reform: Avoidance, Error and
Overreaching in Sunstein et al.’s Punitive Damages, 53 Emory L.J. 1359 (2004) (criticizing the research program on
methodological grounds); Richard L. Weiner, Point and Counterpoint: A Discussion of Jury Research in the Civil
Arena, 23 Law & Hum. Behav. 703 (1999) (introducing a special section of the journal devoted to scholarly
assessments of the punitive damages research project as well as author responses).
18
Valerie F. Reyna & Charles J. Brainerd, Numeracy, Ratio Bias, and Denominator Neglect in Judgments of Risk and
Probability, 18 Learning & Individual Differences 89 (2008) [hereinafter Reyna & Brainerd, Numeracy, Ratio Bias,
and Denominator Neglect]; Valerie F. Reyna & Charles J. Brainerd, The Importance of Mathematics in Health and
Human Judgment: Numeracy, Risk Communication, and Medical Decision Making, 17 Learning & Individual
Differences 147 (2007) [hereinafter Reyna & Brainerd, Importance of Mathematics].
Qualitative to Quantitative Translation in Jury Damage Awards 123
