Expect that Your Jury Is Going to Bring up Those ‘Forbidden Topics’

Holland & Hart - Persuasion Strategies

Holland & Hart - Persuasion Strategies

“We are not supposed to talk about this.” If you’re observing a mock trial, that is often something you hear from one of the mock jurors…just as they begin to talk about it: insurance coverage and attorneys’ fees. Strictly speaking, neither is relevant to the question that jurors are being asked on damages: What amount would make the plaintiff whole and fully compensate them for their injuries or other losses? But both factor into the underlying fairness question that jurors cannot escape: “How much is this person going to get?” The question of whether someone else has already paid the plaintiff in a third-party settlement factors in as well. The message from the courts is to consider only the evidence, and not to speculate in order to make any additions or subtractions on the subject of damages. But that does not mean that jurors are able to go along with that instruction.

Of course, we aren’t in the jury room to check on what they’re doing. While our experience with mock trials tells us that the forbidden topics are broached quite often, the academic research on it has not been extensive. One of the most comprehensive articles is now about ten years old (Greene, Hayman & Motyl, 2011). But that article does give us an interesting look at how often jurors will explicitly bring up insurance coverage, attorneys’ fees, and settlements in the context of deliberations. In this post, I will review some of the main conclusions, and consider a few implications.

The Research: Discussion is the Norm, not the Exception

To assess the prevalence of forbidden-topic discussion, the researchers recruited 90 juries, provided a case summary about an automobile collision, and recorded the frequency of discussions about several topics. Here’s the kicker: 96 percent of all juries discussed at least one of the following:

Insurance Status

It is a common topic, particularly when medical expenses are involved. Fully 84 percent of the juries discussed the plaintiff’s insurance status, and 75 percent also discussed the defendant’s status. While jurors used the latter as a reason why the defendant wouldn’t need to pay personally, they discussed the plaintiff’s status as a reason why some expenses are already paid, and the plaintiff should not be allowed to “double-dip.” So, depending on the party, the discussion of insurance could either inflate or reduce the damages total.

Attorneys’ Fees

Nearly half of the juries, 48 percent, discussed how much the attorney would take in, averaging five such comments during deliberations. Of those who commented, 58 percent suggested that an award should be increased in order to cover the attorneys’ fees. Attorneys’ fees ended up being the only forbidden topic for which the severity of the plaintiff’s injuries were linked to the frequency of comments: Jurors were more likely to focus on attorneys’ fees when injuries were mild rather than severe.

Prior Settlements

Prior settlements with nonparties was one of the less frequently discussed forbidden topics. But still, nearly a quarter (23 percent) discussed it, with an average of 1.3 comments about it per deliberation.

The Implications: Don’t Assume Innocence

Interestingly, the researchers did not find that discussion of these factors was significantly linked to the amount of damages awarded. Perhaps that is because the discussions cut both ways and the effects even out. The implication, perhaps, is that litigators should not worry too much about what they cannot control.

At the same time, jurors’ awareness of these factors, and willingness to put them into play during deliberations, may factor into your strategy.

For plaintiffs, the implication is to make damages about punishment and not just about compensation. The more it is about sending a message, the less jurors will intuitively care whether some of the dollars were covered by insurance or are going to the attorneys.

For defendants, of course, you don’t want to risk a judge’s wrath, or invite an “insurance will pay” attitude that drives up damages, by hinting at these issues. But the more you focus on the role of damages in covering expenses, the more the jurors might stay practical and grounded in their estimates, potentially aided by the notion that some of the expenses are already covered.

One area where the defendant can often legitimately hint at or mention a factor is in other nonparties at fault. While you typically can’t bring up a settlement, you can point to the proverbial “empty chair,” and invite jurors to think about the entire cast of characters beyond the narrow confines of the case.


Thanks to our Quantitative Researcher, Katerina Oberdieck, for the research analysis that served as a foundation for this article. 

Greene, E., Hayman, K., & Motyl, M. (2011). ” Shouldn’t we consider…?”: Jury discussions of forbidden topics and effects on damage awards. Psychology, Public Policy, and Law, 14(3), 194.

Image credit: 123rf.com, used under license

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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