The impact on verdict decisions of jurors’ emotional reactions to a case story has been a consistent concern for litigators, especially for those handling cases involving serious injury. Of course, jurors are instructed that they must put sympathies aside and decide a case solely on the facts. But this conjures the question of whether jurors can truly follow that instruction and, knowing that they are not supposed to use their sympathy in decision making, what do they do with that sympathy?
The perceived contradiction between the task of evaluating human losses and the instruction to put sympathy aside causes jurors strife time and time again as they try to accomplish their mission of reaching a verdict. This is a particular conundrum when evaluating noneconomic damages. Because there is no mathematical equation with which jurors can calculate the value of pain and suffering, the only place we assume jurors can turn is to their emotions—the forbidden fruit.
Cases come to mind that involve either injuries that are emotional, as opposed to physical, or deaths—where a loved one is lost but there are no medical expenses, lost wages, or anyone in need of ongoing care.
In deciding these cases, jurors are lost in a sea of emotion in which they are told they are not allowed to swim. It is these situations in which some jurors say they cannot put a value on pain or a human life, and so they award minimal damages. It is these same situations in which other jurors say they cannot put a value on pain or human life, and so they award extraordinarily high damages.
I have asked hundreds of jurors how noneconomic damages can be calculated reasonably and rationally without using sympathy, and hundreds of jurors have shrugged their shoulders. It is an extraordinarily difficult task. Pain is emotion. Pleasure, and the loss of it, also is emotion. Is it possible to value emotion without using emotion?
So what do jurors do? This article explores MMG Jury Consulting’s research on this question, analyzing aggregated juror preconception data from mock trials across the country as compiled in our 3,000-plus juror database.
Because of the hypothesis that sympathetic jurors will, in fact, render verdicts based on sympathy, attorneys routinely ask questions on voir dire that request jurors to predict or disclose their own emotionality.
Therefore, in our research, we ask mock jurors similar questions. The questions and our results include the following:
- When I think of the important decisions I have made in my life, I would say I made most of them with my:
- Heart = 27 percent
- Head = 73 percent
- In a civil case, would you have any problem putting aside sympathy for the plaintiff and deciding the case solely on evidence?
- Yes = 40 percent
- No = 60 percent
While a juror’s self-expressed emotionality is both interesting and informative, the real question is to what extent the answers to these questions, asked before jurors have heard a case, translate to their reactions after hearing it. Therefore, we also collected data to that effect.
Specifically, we collected additional data from 95 jurors across 5 different mock trials in California and Pennsylvania. These cases involved allegations of catastrophic personal injury, death, or both, caused by medical malpractice, product liability, a trucking accident, and negligent security.
In these cases, we asked whether the jurors had made their verdict decisions with their hearts versus their heads or whether they had had difficulty putting aside sympathy after reaching their verdict decision.
Making decisions with heart versus head:
- 99 percent of jurors who claimed that they made important life decisions with their head stated that they made the case verdict decisions with their head. (N=95; statistical significance = p ≤ .001.)
- 79 percent of jurors who claimed that they made important life decisions with their heart stated that they made the case verdict decisions with their head. (N=95; statistical significance = p ≤ .001.)
- There was just about no difference in verdict leanings between jurors who said they made life decisions with their head (63 percent for the plaintiff) versus their heart (61 percent for the plaintiff). (N=95; no statistically significant differences found.)
Sympathy for plaintiffs:
- Jurors who predicted they would have difficulty putting aside sympathy for the plaintiff were similarly likely (86 percent) to deny that they had difficulty putting sympathy aside in making their decisions compared with those jurors who predicted they would not have such difficulty (90 percent). (N=68; no statistically significant differences found.)
- Jurors who predicted they would have difficulty putting aside sympathy for the plaintiff also showed only a slight difference in verdict orientation (86 percent for the plaintiff) compared with those jurors who predicted they would not have such difficulty (80 percent for the plaintiff). (N=68; no statistically significant differences found.)
In essence, in this research, jurors’ predictions of their own emotionality before hearing the case did not quite match their stated emotional reactions after hearing the evidence (and the jury instructions).
Contrary to most hypotheses, differences in jurors’ claims of high sympathetic emotionality also did not necessarily translate into differentiated verdict orientation.
Perceptions of a Jury’s Role (aka Anger)
In our past research, we have found that anger is a more substantial accelerator of damages than is sympathy. Melissa M. Gomez, Unleash the Power of Mad. Jury Trials Outside-In: Leveraging Psychology from Discovery to Decision 17–19 (Nat’l Inst. of Trial Advocacy/LexisNexis 2016). While sympathy toward a plaintiff is an important issue to explore, our research has found that anger and a desire to right societal wrongs more strongly affect juror perceptions. Melissa M. Gomez, “Power, Corruption and Lies: How Juries Are Responding,” Law360, Feb. 2018; Melissa M. Gomez, “Keeping Up with the Modern Jury” Legal Intelligencer (256), 43, Aug. 30, 2017.
Therefore, our database explores related preconceptions as well:
- It is most important for a jury to make a decision that:
- The jury believes is fair = 50 percent
- Follows the rules set by the judge = 50 percent
- It is an important part of a jury’s job to send messages to society with its verdicts.
- Agree = 54 percent
- Disagree = 46 percent
Again, the salient question is whether these preconceptions translate to juror reactions after hearing a case.
Therefore, using the same five cases, we asked whether the jurors wanted to send a message with their verdict and whether they made their decisions based on what they considered fair versus what followed their perception of the judge’s rules.
Being Fair versus Following the Rules
- Jurors who, before hearing the case, claimed that it is more important to make a decision that is fair were significantly more likely to indicate they made their verdict decisions based on fairness rather than based on the rules (53 percent) than were jurors who claimed beforehand that it was more important to follow the rules than to reach a decision based on fairness (18 percent). (N=95; statistical significance p ≤ .0001.)
- Jurors who, before hearing the case, claimed that it is more important to make a decision based on fairness rather than based on the rules showed no difference in verdict orientation (62 percent for the plaintiff) than jurors who claimed beforehand that it was more important that a jury follow the rules (62 percent for the plaintiff). (N=95; no statistically significant differences found.)
Sending Messages to Society
- The vast majority of jurors who, before hearing a case story, disagreed that it is an important part of a jury’s job to send messages to society with its verdicts nonetheless agreed (81 percent) they wanted their verdict to send a message after hearing the case. Those who stated beforehand that sending messages is an important part of a jury’s job also expressed the desire to do so afterward, to a slightly greater extent (89 percent). (N=51; no statistically significant differences found.)
- There was a slight, but notable, difference in verdict orientation between jurors who believed that it is an important part of a jury’s job to send messages (68 percent plaintiff) and those who did not believe so (59 percent plaintiff). (N=95; no statistically significant differences found.) This difference did not reach statistical significance with this sample, but the data certainly suggest a leaning in that direction, warranting greater inquiry.
In sum, jurors’ voir dire responses to whether they believe fairness trumps the rules accurately predicted their use of fairness in their decision making. It also appears that jurors who did not begin a case with a desire to send a message could, nonetheless, be incited to change that perspective by an emotional story.
Data indicate that jurors who come into jury service with a perspective favoring using verdicts to send messages may also trend more toward a plaintiff orientation than those who do not.
Can Jurors Control Their Emotional Response and Put Sympathy Aside When Instructed to Do So by the Judge?
As indicated by our data, even those jurors who admitted sympathetic tendencies later stated that they did not use them. Are these jurors truly suppressing their sympathy?
Let’s note that while sympathetic jurors denied using sympathy, jurors who before the case denied the need to send messages with their verdicts indicated after the case that they did want to send a message. Therefore, it is possible that when one emotion is expected to be abandoned, it may manifest itself more easily in another emotion—anger. After all, the court does not tell the jurors to put aside their anger.
Though many may devise creative ways to avoid jury duty, most jurors take their oaths and the court rules seriously once they are seated. They want to abide by their responsibility to think logically instead of emotionally. Therefore, despite their disclosure of their emotional perspective in voir dire, many jurors will deny that they relied on that emotionality in their decisions. That would be inconsistent with the instructions given by the judge in the courtroom.
In this effort, jurors will rationalize emotional decisions in order to make the decisions feel logical, despite the emotion underneath it. They will find a logic supporting their decision in order to believe that they have applied not sentiment, but reasonable, rational thought. That is their job as jurors, after all.
Melissa M. Gomez, PhD, is a jury consultant, author, and president of MMG Jury Consulting in Philadelphia, Pennsylvania. She extends her special thanks to Madeline Hudak for her diligent work on the database and analyses central to this article.
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