What's it worth? Jury damage awards as community judgments.

• Author: Hans, Valerie P.
• Position: Response to Jason Solomon, Emory Law Journal, vol. 61, p. 1331, 2012 - The Civil Jury as a Political Institution

TABLE OF CONTENTS INTRODUCTION I. DO JURY DAMAGE AWARDS REFLECT COMMUNITY NORMS? DIFFERENT PERSPECTIVES II. MODELS OF JURY DAMAGE AWARD DECISION MAKING III. VALUES AND DAMAGE AWARDS A. Individual Jurors' Experiences and Values B. Community Effects C. Judges Versus Juries D. Jury Damage Awards: Admittedly Imperfect Mirrors of Community Sentiment CONCLUSION "The law wisely leaves the assessment of damages, as a rule, to juries, with the concession that there are no scales in which to weigh human suffering." (1)

INTRODUCTION

In a recent article, The Political Puzzle of the Civil Jury, Jason Solomon questions whether the civil jury operates effectively as a political institution. (2) Civil juries are said to perform multiple political functions. They inject community perspectives and values into legal decision making. (3) They act as a check on government and corporate power. (4) They legitimize the civil justice system. (5) Finally, they promote greater civic engagement among jurors. (6) Solomon concludes, however, that these claims about the civil jury's multiple political functions are overstated and understudied. (7) He calls for more theoretical and empirical study of the civil jury's performance of its political functions. (8)

This Article offers a response to Solomon's piece, providing evidence about the political dimensions of jury damage award decision making. (91) argue that the damage award is a key part of the civil jury's political activity. Indeed, in my view, it is just as significant as the political nature of the civil jury's liability judgment, which up to now has been a more frequent topic of scholarly inquiry. (10) This Article focuses on one of the dimensions Solomon identifies: the injection of community perspectives and values into legal decision making. (11) I contend that damage awards and community values are deeply intertwined. The dollars that juries award, from the compensatory amounts they grant to auto accident victims to the punitive damages they deliver against large corporations, are very much products of community views and sentiments. (12) In my view, damage awards constitute powerful political actions by the civil jury. Civil jury damage awards serve to check or endorse private power, whether it is power over one's own neighbors or over business corporations.

To support my argument, I draw on theoretical accounts of jury decision making about damages, including the story model, (13) insights from cultural cognition research, (14) and a new gist model that cognitive psychologist Valerie Reyna and I have developed to explain the process of jury damage award decision making. (15) Jurors' values constitute an important component of these and other models. (16) I also describe the empirical research that documents and establishes the pervasive influence and content of community values in jury damage award judgments. (17)

1. DO JURY DAMAGE AWARDS REFLECT COMMUNITY NORMS? DIFFERENT PERSPECTIVES

   The dollar amount of a jury damage award expresses community values in multiple ways. It reflects the socially assessed value of an injury, calibrated to take into account a specific context and the identities and circumstances of the injurer and the injured. The jury's damage award amount also incorporates the meaning of money held by community members. (18) Community judgments are reflected in awards for economic damages, noneconomic damages, and punitive damages.

   Solomon acknowledges that:

   Community norms might also dictate how much certain wrongs or injuries are worth in damages.... One could say that the level of damages is a way that the community sends a message about how bad the wrong or injury is, and this is an important part of helping constitute a community--meting out justice... is a way of articulating a community's values. (19) On this, we completely agree with each other and with the great jury scholar Harry Kalven, Jr., who wrote eloquently about the jury's ability to measure the worth of human injury and suffering for each individual plaintiff: "There is in brief no standard man, no reasonable man afoot in the law of damages.... And the jury is of necessity left free to price the harm on a case by case basis." (20) The assessment of money damages is a profoundly ambiguous task. In a tort case, for example, winning plaintiffs are entitled to receive damages that compensate them for both economic and noneconomic losses "proximately resulting from the defendant's tortious act or omission." (21) However, fact-finders are given limited guidance or direction about how to value damages. (22) Consider, for example, the federal pattern instruction on compensatory damages:

   The purpose of the law of damages is to award, as far as possible, just and fair compensation for the loss, if any, which resulted from the defendant's violation of the plaintiff's rights. If you find that the defendant is liable on the claims, as I have explained them, then you must award the plaintiff sufficient damages to compensate him or her for any injury proximately caused by the defendant's conduct. These are known as "compensatory damages." Compensatory damages seek to make the plaintiff whole--that is, to compensate him or her for the damage suffered.... The damages that you award must be fair and reasonable, neither inadequate nor excessive. (23) The jury instructions exhort the jury to award "fair and reasonable" damages that are "sufficient," "neither inadequate nor excessive." The instructions leave the interpretation of these general descriptive terms up to the jury.

   Even though some cases include information about concrete costs of an injury, such as medical expenses and work impact, the uncertainty of related projections that legal fact-finders are required to make even about these relatively concrete losses can be considerable. How long will a plaintiff survive? Will a disability have more or less impact on work performance over time?

   There are also intangible injuries with no ready market value, including the pain of a severe injury, the emotional loss of a spouse, the inability to hug a child, or the lost opportunity to pursue a favorite hobby or sport.

   The abilities to handle uncertainty and to price the intangibles are among the civil jury's purported benefits. The jury award combines the evaluations of six or twelve diverse members of the community and thus provides a measure of the community's assessment of the value. That the jury is given the freedom to assess the harm from the injury reflects a strong preference embedded in the institutional arrangement, a preference "for the community sense of values as the standard by which to price the personal injury." (24)

   However, Solomon argues that the significance of community values in juries' damage awards is limited:

   As a practical matter, though, community values rarely come into play in damage awards because punitive damages are rare, and the only other category that is indeterminate is pain and suffering. So deciding damages in civil cases seems like a poor way for members of a community to articulate their values and participate in government. (25) Some years ago, George Priest made a similar argument about the limited political role of the civil jury. (26) Like Solomon, Priest lamented the fact that the "political role of the civil jury has been largely neglected." (27) After reviewing Jury Verdict Reporter data from civil jury trials in Cook County, Illinois state courts from (1959) to (1979), Priest concluded that "the dominant understanding of the justifiable role of the civil jury--as an institution for the resolution of disputes involving complex societal values and as a popular democratic counterforce--describes very few of the actual tasks of the modern civil jury." (28)

   Analyzing the specific cases and injuries that juries in Cook County decided, Priest found that civil juries spent just under (20) percent of their time on cases that in his estimation required complex damage assessments. (29) These cases included such issues as libel and slander, catastrophic injuries, deaths of individuals without incomes, and loss of consortium. (30) In the Cook County cases, much jury energy was expended on the resolution of automobile accidents, not on cases involving governmental actions or police wrongdoing. (31) Priest calculated that over half of the jurors' time was spent in assessing routine damages such as fractures, sprains, and whiplash. (32) Based on the most recently available national survey of state court civil trials, motor vehicle cases remain a substantial part of the contemporary civil caseload. (33)

   Both of these fine scholars take, I think, an overly limited view of the political dimensions of the civil jury's role. In their view, politics apply to a relatively narrow range of cases and tasks. They view political dimensions of the civil jury's role mostly in cases involving government or big businesses as the parties, and in the determination of punitive damages. Whiplash in car crashes, not so much.

   Here, we part company. Even in the modest case in which a jury must assign money damages for whiplash suffered in a car accident, the civil jury's dollar awards for the plaintiff's physical and noneconomic injuries are inevitably infused with the community's values. Those values do not always support the little guy against Goliath, but they reflect community judgment all the same, and in that sense are political. Juries police the boundaries of acceptable wealth distribution through the civil justice system, deciding exactly how much money to shift from the harmdoer to the harmed.

2. MODELS OF JURY DAMAGE AWARD DECISION MAKING

   Explaining how community values influence jury damage awards requires an understanding of the mechanisms by which those values are incorporated into a civil jury's monetary award. Although the process of damage award decision making is understudied, recent theoretical advances and empirical...