Last month, I attended the annual conference of the
American Society of Trial Consultants
in Long Beach, CA. The program was excellent. In particular, there was
a fascinating and important session on ethical dilemmas in trial
consulting. ASTC now has a complete set of ratified
practice standards
discipline continues to mature, we are wrestling with how to
interpret these standards. I plan to devote a future issue of
The Jury Box to the ethics of trial consulting.
I always look forward to the conference session on new research in
jury behavior and this year’s session did not disappoint. In
this issue, I report on two particularly interesting studies: one on
per diem arguments about damages and the other on how jurors react to
apologies by defendants. This second topic has received a lot of
attention recently. We know that apologies can reduce the likelihood
of a suit being filed and can facilitate settlement, but we know less
about how juries will respond to them at trial.
-- Edward P. Schwartz
Any of you who have attended one of my presentations on jury
decision-making or trial strategies has heard my spiel about my
being, first and foremost, a social scientist. As such, I
believe in data and I look first to empirical studies for guidance
when advising clients. As such, it is important for me to keep up
with mock jury studies as their results are made available. The ASTC
conference is one good place to catch up on such research, but I plan
to include a regularly updated bibliography of jury research on the
new ASTC website. This will help all ASTC member consultants apply
the latest cutting-edge research to all their future trials.
Taking it day by day
Attorneys are often faced with the dilemma of how to present
arguments about non-economic damages to jurors. Most juries are left
to their own devices, creating great anxiety about where to even
begin such calculations. The foreignness of this exercise is the main
reason why ad damnum requests are so influential on damage awards. In
some jurisdictions, attorneys are also permitted to make per diem
arguments about such damages. Where courts have rejected this
practice, the rationale is usually that per diem arguments are likely
to generate excessive damage awards.
Bradley McAuliff, of CalState Northridge, recently conducted
research to test the conjecture that per diem arguments generate
excessive awards. His first study provided subjects with a written
account of an automobile accident torts case, where the plaintiff
suffered non-economic harm in the form of severe back pain and
reduced mobility. Subjects read versions of plaintiff’s closing
arguments with either no per diem argument, or one of three with
identical monetary value ($1/hour, $24/day or $730/month).
As the table below shows, per diem arguments (PDA) actually reduced
the size of average damage awards.
This result is consistent with prior research on the effects of
breaking damage awards into component parts. When jurors are asked to
calculate awards for specific harms and then add them up, the
resulting total damage award is typically smaller than had the jury
just calculated a total award in the first place. While the component
parts are temporal, rather than substantive in McAuliff’s study,
the subjects were still forced to add up smaller amounts to reach a
total.
Notice also that the average award dropped as jurors were asked to
calculate in larger time increments. Supported by subjects’
self-reporting of cognitive effort, the author speculates that many
were overwhelmed by the prospect of calculating damages hour-by-hour
or day-by-day. As a result, many of the subjects in those treatments
essentially gave up on actually calculating the award and picked what
they believed to be an appropriately sized total. By comparison,
multiplying the monthly amount by 12 or 18 is a fairly simple
arithmetic operation.
McAuliff then conducted a follow-up study, in which all jurors heard
a per diem argument and half of them also heard a lump sum ad damnum
request. As the table below clearly illustrates, when jurors had
access to an ad damnum, they quickly abandoned any pretense of
calculating damages from the hourly, daily or monthly figures. Notice
that average awards were virtually identical when an ad damnum was
available, regardless of what kind of per diem argument the subjects
heard. Only in the absence of a lump sum request did the form of the
per diem argument matter.
Contrary to the concerns of courts that have prohibited per diem
arguments, plaintiffs actually did better when per diem arguments
were avoided. Ideally, a plaintiff’s attorney should make a
lump sum request. Where an ad damnum is not permitted,
plaintiff’s counsel is probably better off leaving jurors to
think about damage awards in gross terms, rather than trying to
support a particular outcome with incremental logic. By contrast,
defense counsel would be wise to try to convince the jury to think
about damages in incremental terms. Such a strategy, however, can
backfire if the resulting calculations overly tax the cognitive
abilities (or patience) of the jurors. Where possible, stick to
monthly or annual figures so that the math remains fairly simple.
Better to seek forgiveness than permission?
Given the amount of stonewalling and denial we see in both the
corporate and political arena, one would never guess that a growing
body of research supports the notion that an apology is often the
most effective strategy in response to a mistake. Studies have shown
that an apology can reduce the likelihood that an injured party will
file suit and it can make settlement easier, as well. The concern
among attorneys (and their clients) was that an apology would serve
as an admission of negligence, hampering the defendant’s
efforts at trial.
Kevin Poully studied this very problem in his doctoral thesis at the
University of Kansas, entitled “Mea Culpa in the Courtroom:
Juror Perceptions of Defendant Apology at Trial.” Poully ran a
mock trial study involving a summary of a nursing home negligence
case. All subjects saw exactly the same version of the trial, except
that some saw no apology by the defendant, some saw a partial apology
(in the form of an expression of remorse) and the final group saw the
defendant offer a full apology.
Respondents were then asked to decide whether or not the defendant
was negligent. Contrary to conventional wisdom (or attorneys’
fears) on the topic, an apology had no discernable impact on the
inclination of mock jurors to find the defendant negligent.
Respondents were then asked to calculate damage awards. Again, the
presence of an apology (or its form) had no significant impact on
jurors’ decisions. The average awards (economic, non-economic
and punitive) were essentially the same, regardless of whether the
defendant apologized at trial.
This is one of those cases where a non-result is actually a very
strong result. While an apology was seen to offer no real benefit or
cost with respect to verdict choice, it is important to remember that
past studies did demonstrate the advantages of apology at prior stages
of the litigation process. The lesson to be learned from the present
study is that defendants should feel comfortable apologizing for
other reasons (strategic, ethical, psychological or otherwise),
knowing that an apology is unlikely to affect them adversely at
trial.
I know that Dr. Poully is currently working on distilling his
results into articles for publication. I’ll be sure to alert
readers of The Jury box as those articles become publicly available.
In the News
Juror Shortage Hits Boston
Despite ongoing reports of the demise of jury trials, Suffolk
County, MA appears to be running out of jurors. Massachusetts has a
"one day or one trial" policy for jury duty, which quickly cycles
through the eligible jury population. Those who have served cannot be
called again for three years. Massachusetts is also the only state
that relies on an annual town census to create jury rolls. This is a
particularly error-prone process in communities with large student,
transient, poor and/or immigrant populations. As such, Boston has a
rather poor response rate for jury summonses (25%). This shortage
lends additional support to the proposal of State Senator Stanley
Rosenberg (D-Northhampton) to switch from the census method to one
relying on voter registration, welfare rolls and other public
records.
I am curious to see how this juror shortage dovetails with the
expressed willingness of many judges in the Commonwealth to allow
individualized, attorney-conducted voir dire in some cases. Will
these judges reconsider if such voir dire threatens to stretch the
jury pool even thinner? Only time will tell.
Want to know more?
Access all issues of The jury Box At
http://www.eps-consulting.com/jurybox
No comments:
Post a Comment