Charity and the American jury: exploring the relationship between plaintiff's need-based arguments and juror verdicts in medical malpractice suits.

• Author: Worthington, Debra L.

Argument plays a fundamental role in the legal process. Scholars exploring the interconnection between argument and law have examined the forms of reasoning in legal argument (Newell & Rieke, 1986; Sheppard & Rieke, 1983), the patriarchal nature of legal argument (Crenshaw, 1996), the role of "social knowledge" in the construction of legal argument (Hollihan, Riley, & Freadhoff, 1986), and the appropriate number of arguments at trial (Calder, Inkso, & Yandell, 1974). In line with this tradition, the present essay explores the impact of one form of legal argument, plaintiffs' need-based arguments. Such arguments highlight a plaintiff's need for a monetary award in civil litigation; they reveal to the jury that the plaintiff has significant, unmet material needs.

Such need-based arguments are of particular import in our legal process because they are closely associated with one of the recurring criticisms of American civil juries-that jurors commonly make decisions based on sympathy for needy plaintiffs rather than adherence to the law. Offering one such criticism in his famous indictment of the jury system, Peter Huber (1988) argues that juries have turned the legal system into a "charity" program (p. 12) where "the only human re action to the individual [plaintiff] tragedy ... is unbounded generosity, which any large corporation or insurer can surely afford to underwrite" (p. 185). Judges, lawyers, and legal commentators continue to believe that jurors naturally favor downtrodden plaintiffs over prosperous defendants (Clermont & Eisenberg, 1992; Daniels & Martin, 1986; Hans, 1992; Hans & Lofquist, 1992). This viewpoint helps explain why "it is a commonplace belief among trial lawyers that, especially in personal injury cases, appeals to sympathy help to win cases" (Hans & Vidmar, 1986, p. 136) and why lawyers pursuing such lawsuits overwhelmingly opt for jury trials (Clermont & Eisenberg, 1992).

If jurors in civil cases base their decisions on plaintiffs' needs and defendants' resources, then plaintiffs' cases should generally benefit from the incorporation of need-based arguments. Following this same line of reasoning, plaintiffs' cases should benefit more from strong need-based arguments (those which depict a plaintiff in dire circumstances) than from weak need-based arguments (those which depict a plaintiff with few material needs). Under the dictates of tort law, such need-based factors constitute an extra-legal consideration; need should not determine who is at fault for an injury, and damages are to be determined based on loss rather than need. If need-based arguments, which essentially highlight an extra-legal factor, do have a considerable effect upon jurors, then tort reform efforts might benefit from finding meaningful ways to constrain such arguments.

Thus, this study explores the effect of need-based arguments and associated variables on mock-jurors' assignments of fault and damages.

REVIEW OF THE LITERATURE

Does existing theory and research demonstrate such effects from need-based arguments? Unfortunately, existing scholarship has not specifically addressed this question. This oversight is consistent with the vast majority of social scientific legal research, which has focused largely on criminal cases at the expense of civil litigation (Abbott, Hall, & Linville, 1993; Hans, 1992; MacCoun, 1993). While existing research has not attempted to assess how plaintiffs' need-based arguments shape tort decisions, some extant scholarship indirectly sheds light on this relationship. In its totality, this research presents a very mixed picture.

Need

Blalock (1991) notes that the need principle "constitutes a justice criterion stressed in the Judeo-Christian tradition" as well as in other religions which emphasize charitable obligations (p. 209). Some scholarship suggests that such a need-based principle could sway jurors in favor of poorer plaintiffs. For example, distributive justice research has uncovered three basic norms for determining a just allocation of resources: equity, equality and need. When individuals distribute justice based on need, they move resources from those with means to those with needs. While the need principle has received the least attention of the distributive justice norms (Salazar, 1991; Linkey & Alexander, 1998), a number of studies have shown individuals determining just outcomes based on need (Deutsch, 1985; Linkey & Alexander, 1998; Schwinger, 1980, 1986).

However, such distributive justice research may not directly apply to courtroom settings for a number of reasons. First, based upon his early research, Deutsch (1975) argued that differing situations lead individuals to adopt different allocation principles. For example, competitive situations may lead people to adopt an equity norm, while cooperative task situations may lead individuals to utilize the equality norm. The need principle is more likely to be used when group members are part of a supportive, caring social climate or when the allocators are held accountable for the well-being of the recipients. The American adversarial legal system certainly does not foster a caring social climate in the courtroom nor does it hold jurors accountable for their decisions.

Second, the model employed in the early distributive justice research makes it difficult to compare this work with trial proceedings. The majority of this early research focused upon a two-party allocation process (reward recipient or allocator), making it difficult to apply findings to juror attributions. In the first study of its kind, Linkey and Alexander (1998) had subjects take the role of a third-party allocator--a role that is somewhat more comparable to a juror. After reading a vignette describing a teacher who needed a salary increase because one of her children faced a serious medical situation, participants judged a number of factors including fairness, employee entitlement, and general attitudes towards the equity, equality and need norms. Findings indicated that the need norm predicted "significant amounts [4-13%] of unique variance" for each of the dependent measures (p. 155). However, while this study does address the interaction of third-party allocators and the need norm, there are obvious di fferences between a teacher with unexpected medical bills and an injured plaintiff in civil litigation. Consequently, it is unclear how Linkey and Alexander's findings, or any of the distributive justice work on the need principle, may apply to juror verdict formation.

Other research, more directly applicable to the courtroom, has uncovered individuals making need-based decisions. Specifically, some jury post-decision interview studies have uncovered need as a factor in the jury decision making process. For instance, one of the lead scholars on the Chicago Jury Project, Kalven (1958), argued that juries award higher damages to plaintiffs with a family to support: "It is our impression that where the facts as to liability and damages are ambiguous, damages are likely to vary in accordance with the number of dependents looking to the plaintiff for support" (p. 169). In other words, as plaintiffs' needs increase so do the monetary awards they receive. Hans and Lofquist's (1992) post-decision interviews with civil jurors also revealed similar need-based considerations with an interesting caveat; they found that "jurors often penalized plaintiffs ... who did not appear deserving due to their already high standard of living" (p. 95). In other words, low levels of need were associ ated with unfavorable verdicts. Broeder's (1965) interviews with jurors in personal injury cases provide perhaps the best evidence to date of jurors utilizing need to distribute justice. This study involved post-trial interviews following several personal injury cases such as the Phillips case, which centered on an injured truck driver with a wife and child. Many of the jurors who served on this case favored a pro-plaintiff verdict and high damage award "in part out of sympathy for the situation in which plaintiffs wife and child might find themselves if the plaintiff could no longer work" (p. 132). From his collective interviews, Broeder concluded that jurors placed a high value on families and that they were willing to shift resources to families in need. The plaintiffs "family responsibilities," he argued, "must often be a factor tipping the scales in his favor on the question of liability and in increasing the level of his award" (p. 135). Unfortunately, while the findings of this study clearly demonstrat e jurors incorporating need into their decision making process, these findings are also based upon a very small sample of cases.

While substantial evidence indicates that need-based arguments may influence jury decisions, significant research also points in the opposite direction. Many scholars of jury behavior believe that juries make decisions based upon the law and evidence rather than upon extra-legal factors such as sympathy for a needy plaintiff (Clermont & Eisenberg, 1992; Constable, 1991; Guinther, 1988; MacCoun, 1987). Moreover, while some post-decision interview studies have shown juries sympathizing with needy plaintiffs, Hans and Lofquist's (1992) post-trial interviews with jurors in tort cases revealed that most jurors operate on a principle of fairness, which necessitates equal treatment for both plaintiffs and defendants. In fact, if plaintiffs did receive unequal treatment, they generally faced an anti-plaintiff bias: "Plaintiffs were subjected to a surprising degree of suspicion regarding [their] motivation and deservingness" (p. 96). Jurors commonly spoke of a "money-hungry" plaintiff who overdramatized an injury in o rder to reap rich rewards (p. 95). While the data from these post-trial interview studies help explain juror decision making in actual cases, they are limited by a number of methodological problems: juror recall, juror...