Mind games: Getting into jury members’ heads

Jury trials can be unpredictable – but that doesn’t stop attorneys and researchers from attempting to determine how a jury will react to cases and award damages.

“If jurors allow their bias to affect the decision, they aren’t aware they’re doing so,” said Edith Greene, professor of psychology at the University of Colorado, Colorado Springs and author of a book about jury psychology. “They set out to be careful and responsible.”

But particularly in business cases, attorneys are often uncertain what the outcome will be – winning a business jury trial requires understanding how jurors will use the testimony to reach their verdict.

“Most jurors are not looking to punish intensively,” Greene said. “And by and large, they get it right. But that often means having to compromise.”

In a perfect world, juries would be made up of a diverse group of people – different backgrounds, different ethnicities. But jury selection often changes that, she said.

“The majority will get their way on one part of the case, maybe the economic damages, while the minority will decide another part,” Greene said. “Or, they will lower the overall judgment if people don’t like to give out large jury awards.”

Juries are aware of the types of cases that make headlines, she said. Large judgments – such as the multi-million dollar award when a woman spilled hot coffee in her lap – make them even more “stingy,” she said.

“People are wary – they want to keep insurance rates low, they want to keep doctors in their practice,” she said. “And large awards affect jurors, too. They have no sense of what the typical award is like, so they see their role as reining in the system.”

Both sides in a civil suit need to be aware that jurors are weighing their motivations and their ethics.

“At least part of it is that juries are wary of the plaintiff’s motives,” she said. “But they also hold defendant corporations to a higher standard than they would an individual. Plaintiffs asking for a lot of money – they feel they need to keep that under control. But they also think corporations should act ethically and responsibly, more than individuals.”

Decision Quest, an online litigation library, says that jurors use three methods to calculate damages: averaging, using an anchor figure or a compromise figure.

“Jurors struggle with damages, particularly in cases in which offering money will not bring someone back to life, or give the plaintiff back his lost arm,” the report said. “Much is talked about with regard to how irrational jurors are in their assignment of damages …”

But in most cases, jurors approach the problem in a way that makes sense to them. Jurors poll one another, and then use a calculator to average the award.

Or they will use a number – referred to as a psychological anchor – to assist in making a decision about damage awards. Jurors offered two different anchors often compromise and find a midpoint figure.