As a defendant thinking about your risk in the run up to civil trial, you probably have some idea of what your case is worth. But you also know, and have likely used, the expression, “Anything is possible with a jury.” There is always the chance of a run-away jury adopting a dangerously open-ended approach when it comes to awarding damages. Rather than just covering the categories where the plaintiff can show concrete losses, they see a need to take the gloves off and send a message through noneconomic categories, or through punitives. In short, they are focused more on punishing the defendant than on compensating the plaintiff for what was lost.
What is it about the jurors themselves that makes this scenario more likely? As part of our research on this “punishment profile,” Persuasion Strategies is looking at the personal and situational factors that bring that mindset to the fore. In this post, I will outline some of the demographic and attitudinal factors that help to predict who among your jurors will be more inclined to want to punish the defendant, based on our recent survey of the juror-eligible population.
One important caveat in analyzing potential jurors is that the profile is not destiny. In other words, a member of the venire might have one or more unfavorable traits or attitudes, but that does not mean that they necessarily warrant a strike. It is important to understand and evaluate the whole picture for each potential juror. That said, the presence of some factors does increase the risk.
Based on our research that tested a scenario involving a commercial vehicle striking a pedestrian, the following factors are associated with greater support for punitive damages and/or support for higher punitive damages levels at a statistically significant level.
- Younger on average (mean of 46 for those supporting)
- Supports social responsibility (rather than individual responsibility)
- Higher on the Anti-Corporate Bias Scale
- Believes that corporates cause a high amount of environmental damage
- Support for greater regulation of corporations (when the scenario appeals to anger and sympathy)
- Believes lawsuits typically have merit
- Believes the number of lawsuits against corporations are about right or too few
- Believes the damage amounts awarded by juries are about right or too low
One factor to also keep in mind is that it is not just the jury composition that increases the chances of a punishment-oriented verdict. There may also be aspects of the story jurors are reacting to that make that response more likely. For example, our research manipulated aspects of the situation so as to increase the effect on the plaintiff (building sympathy) or to increase the emphasis on the driver’s choices (building anger). While those factors will be covered in a future post, the short version is that anger matters more than sympathy, but both — particularly in combination — increase the chances of a punitive award. So it is helpful to look at both your jury pool and your specific scenario.
Image credit: 123rf.com, used under license