Precious little guidance: Jury instruction on damage awards.

Abstract

Jury instructions on damage awards are notoriously vague and ambiguous. As a result, awards are sometimes unexpected and seemingly illogical. In this article, the authors argue that jury instructions regarding damages are vague because the law of damages itself is purposefully ambiguous-allowing particularized justice across a variety of different circumstances. The authors review research on comprehension and application of substantive jury instructions related to damages and on procedural variations at trial (e.g., use of preinstruction, bifurcation, blindfolding jurors to various issues, special verdict forms, caps on damages, and instruction revision) that impact the substantive instructions that jurors receive from the judge. They comment on attempts at reforming jury instructions regarding damages and conclude that jurors' decision making on this difficult and emotional issue could be made more predictable by careful reforms at the trial level.I was under the impression we'd have guidelines. I feel we were thrown in a box and had to come out with a number. (Anonymous juror quoted by Vidmar, 1995, p. 243) A juror serving in a North Carolina medical malpractice case expressed this sentiment. She and fellow jurors heard evidence at trial that a 28-year-old plaintiff suffered a peritoneal infection and permanent brain injury after undergoing cesarean surgery. During the trial, the jury was provided with evidence of medical bills resulting from her injury that amounted to several thousands of dollars. The defense attorney argued vehemently that the plaintiffs injuries were not caused by the defendant's actions but then said any award to which the plaintiff was entitled should be small because the hospital and doctors had already paid her medical expenses. In his charge to the jury on damages, the judge informed the group that they should consider the amount of compensation the plaintiff should have as well as an amount for the husband's claim of loss of consortium. He further cautioned them to determine an award based solely on the evidence and instructed them that the amount should be fair, just, and reasonable and not determined by sympathy.The jury deliberated for 3.5 hr, after which they returned a verdict of $850,000 along with strongly worded complaints about the ambiguity involved in their assigned task. Several members of the jury apparently felt that doing their duty "was difficult for all of us."

Measuring damages for lost enjoyment of life: The view from the bench and the jury box.

“…On the other hand, distinguishing between LEL and pain and suffering conceptually and requiring mock jurors to make separate awards for these two elements of noneconomic damages does lead to higher awards, as evidenced by the difference between the LEL/separate condition and the other conditions. Previous research has found that special verdict forms, along the lines of the LEL/separate condition, enhance juror comprehension and lead to more equitable awards (Greene & Bornstein, 2000). Here, itemizing award components did enhance mock jurors' (reports of) comprehension, but it also increased their total awards.…”

“…With respect to the plaintiff's injuries, a more realistic trial, with a fl esh-and-blood plaintiff, could easily make her injuries more, rather than less, dramatic and salient. Regarding the salience of the jury instructions about LEL, it is a well-documented fi nding that slight variations in instructions can signifi cantly affect jurors' comprehension and their verdicts, even when the trial materials are relatively complex (Greene & Bornstein, 2000).…”

Crisis, What Crisis? Perception and Reality in Civil Justice

“…), jurors must weigh testimony that includes speculative projections and technical calculations. Even economic experts would have trouble making such calculations; yet throughout this process, jurors receive little guidance (Greene & Bornstein, 2000).…”

“…One of the most difficult tasks for civil jurors is quantifying the exact amount of damages (Kalven, 1958;Greene & Bornstein, 2000. In addition to simply clarifying the standard instructions, some reform measures advocate providing jurors with ''benchmark'' data from similar trials so that they have a frame of reference in deciding how much to award in damages (Bovbjerg, Sloan & Blumstein, 1989;Dann, 2003).…”

“…Several states have recently taken steps to help jurors to do their job properly by improving jury instructions, increasing juror compensation, and producing juror education/orientation videos with information relevant to rational decision-making (Greene & Bornstein, 2000;Marder, 2006;Miller & Bornstein, 2004). Legislatures and reform advocates could also benefit the system by allowing note-taking and question-asking during complicated trials (see, e.g., ForsterLee, Horowitz & Bourgeois, 1994;Heuer & Penrod, 1994;Mott, 2003).…”