New research on damage awards: Do jurors just split the difference?





Data analyses from our surveys and mock trials of hundreds of mock jurors show that the correct answers to our poll should be as follows:

Q. A “damages defense” that suggests any number other than $0 as a damage award implicitly concedes liability and increases the chances of a plaintiff’s verdict.  


Q. In catastrophic injury cases where the defense has presented expert testimony outlining multiple life care plans to counter the plaintiff’s life care plan, the percent of jurors who “split the difference” between the plaintiff’s plan and the defendant’s plan is:


Are you surprised?   Here is a summary of some of the research:

Our web surveys, mock trials, and post-trial juror interviews with hundreds of people have assessed whether plaintiff jurors just “split the difference” between the plaintiff demand and the defense offer.



A Brief History of Damages Defenses


Damages defenses are much more common today than they were 30 years ago. 


In those earlier days, lawyers commonly believed that discussing any number other than $0 conceded the viability of the plaintiff’s liability claims.  There are still some parts of the country where that thinking and tradition still holds true.


However, our post-trial interviews with jurors have revealed that juries who find in favor of the plaintiff feel they had no choice but to award the damages presented by the plaintiff. 



Even if the defense had done a masterful job in the cross-examination of plaintiff’s economic witnesses, if there are no alternative defense numbers in evidence then jurors feel the only evidence before them is that which was presented by the plaintiff.



Does a Damages Defense Concede Liability?


We tested whether a damages defense creates the perception that the defense is conceding liability.  In experimental studies conducted in the early 80s, we compared groups of mock jurors that get a damages defense against groups that do not get a damages defense.  We found no effect on liability verdicts. 


However, we did find a difference in damage awards.  Awards were higher when no damages defense was offered. 


Further research showed that there are several effective messages that can be offered in voir dire, in the case-in-chief, and in closing argument to avoid the perception that the defense is conceding liability when offering a damages defense.  One such message is simply letting jurors know that the attorney has an obligation to respond to every point of evidence put on by the plaintiff, even if the defense attorney feels that the jury will not need that information because the evidence shows that the defendant is not liable. 


Do Jurors Just "Split the Difference?"


In the new era of damages defenses, how do jurors evaluate all of the economic evidence once they have found in favor of the plaintiff? 


Experienced trial lawyers have seen many note-taking jurors put their pens down shortly after the economic testimony begins.  Have those made up their minds, or is this type of information overwhelming and/or numbing? 


It would be easy to assume that since most jurors do not follow along or retain the information they hear about “growth rates,” “discount rates,” “Black Shouls factors,” “present cash value versus future value,” etc. and they just listen for the bottom-line and then split the difference. 


True?  Not true!


Most people do not just split the difference. 


A Web Survey Test


In a recent web survey, we presented a catastrophic injury case about a woman in a persistent vegetative state with a relatively long life expectancy.  The evidence, arguments, law, and verdict form were presented to 298 online respondents.  198 of them found in favor of the plaintiff and awarded damages.  The plaintiff presented evidence that care currently costs $550,000 per year.  The defense offered three alternative plans that ranged from $255,000 per year to $425,000 per year. 


Type of Care
Daily Care
Total per Year
Sub-Acute Facility
Private-hire LVNs
Private-hire CNAs


The vast majority of respondents awarded damages that were consistent with one of the plans offered by either side.  Only 12 people out of 198 (6%) “split the difference.” 


“Outliers” included 6% who awarded less than the defendant’s lowest option and 12% who awarded more than the plaintiff’s demand. 
That left 76% who specifically based their award on either the plaintiff’s demand or one of the three defense options.




Mock Trial Tests




We followed up the survey with a mock trial.  We found that the deliberations followed a similar pattern.  Jurors do carefully evaluate the alternatives presented to them by both the plaintiff and the defendant's alternative life care plans:
When no damages defense is offered in a case where jurors have found in favor of the plaintiff on liability, few jurors favor splitting the difference.  Most argue that they have heard no evidence of any alternative to the plaintiff's plan.  If they are to base their award on the evidence they have heard, they must give more weight to the plaintiff's number.
Here is an example of jurors debating this point:





To Learn More




We offer seminars on how jurors award damages, or for a one-on-one discussion about a specific case.



Copyright © 2009 Jury Behavior Research Inc. All rights reserved.