1 JURORS' ATTITUDES ABOUT CIVIL LITIGATION AND THE SIZE OF DAMAGE AWARDS EDITH GREENE* JANE GOODMAN** ELIZABETH F. LoFTus*** TABLE OF CONTENTS I. M ethod A. Participants B. Procedure C. M aterials II. Results A. Estimates of the Percentage of Plaintiffs Whose Awards Exceed $1 Million B. Correlation Between Estimates of Percentage of Million Dollar Awards and Mock Juror Damage Awards C. Responses to the Attitude Survey Beliefs about the tort reform movement and the "insurance crisis" The influence of the media on jurors' attitudes about civil lawsuits Beliefs about attorney credibility Correlation between responses to attitude survey and mock juror damage awards III. Discussion * Associate Professor of Psychology, University of Colorado; B.A., Stanford University, 1971; Ph.D., University of Washington, This study was funded by a grant in which all the authors participated from the National Science Foundation, Law and Social Sciences Program. ** Postdoctoral Research Associate, University of Washington, Attorney-At-Law (Associate) Frank and Rosen (Seattle). B.A., Witwatersrand University (Johannesburg, S. Africa), 1972; J.D., University of Puget Sound, 1983; Ph.D., University of Washington, *** Professor of Psychology and Adjunct Professor of Law, University of Washington. B.A., University of Southern California, 1966; Ph.D., Stanford University,
2 806 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:805 The jury smiled when they made the award. They didn't know it was coming out of their own pockets. They thought they were giving away the insurance company's money. So it wouldn't hurt to be generous. Because insurance companies can afford to pay big awards. All they have to do is collect higher insurance premiums. From you. And excessive awards eventually cost you money. We don't object to paying fair awards. That's our business. But paying exaggerated awards inflates costs. And can affect your insurance in other ways... No one likes higher prices. But we're telling it straight. This advertisement, written for Crum & Forster Insurance Companies, was part of a multi-million dollar publicity campaign that the insurance industry launched in 1985 in response to the perceived insurance "crisis" purportedly caused by a civil justice system in disarray.' The industry advertised against large damage awards, urged consumers to join the battle against "lawsuit abuse," and lobbied lawmakers to reform state statutes. Other messages, including those from media sources, expressed similar concerns: "Everybody in the USA suddenly seems to want to sue anybody with liability insurance coverage... The greed has turned the temple ofjustice, long a hallowed place, into a pigsty;" '2 "Like a plague of locusts, U.S. lawyers with their clients have descended upon America and are suing the country out of business. Literally." 3 Indeed, a sort of "insurance crisis" did exist throughout the nation in the mid-1980s. Complaints that insurance had become prohibitively expensive for many people, or worse, that insurance was no longer even available, abounded. Nearly all state legislatures responded to this situation by instituting some version of tort reform legislation. According to one commentator, forty-six states enacted 208 pieces of reform legislation during Proposed legislative remedies included establishing caps on jury awards of various kinds (e.g., for pain and suffering), completely abolishing particular kinds of awards (e.g., punitive damages), limiting contingency fee payments for plaintiffs' lawyers, changing the rules of discovery, tightening negligence rules, and loosening standards of care and conduct United States Department of Justice, Report of the Tort Policy Worhing Group on the Causes, Extent and Policy Implications of the Current Crisis in Insurance Availability and Affordability, 80 (1986). 2. Hold Down Awards to Ease the Crisis, USA Today, June 6, 1986, at 12A, col Dee, Blood Bath, 10 ENTERPRISE 3, 3 (1986). 4. Casey, Tort Reform Coalitions Flourish in Midwest, NAT"L UNDERWRITER, PROPERTY & CASUALTY INSURANcE EDITION, July 18, 1986, at 14 (discussing effectiveness of tort reform coalitions in lobbying for new legislation). 5. Daniels & Martin,Jury Verdicts and the "'Cris" in Civil Justice, 11 JUST. Sys. J. 321, 323
3 1991] JURORS' ATTITUDES ABOUT DAMAGE AWARDS 807 Would-be reformers portrayed the erratic behavior of juries as the primary cause of the insurance crisis. 6 To bolster their claims, they cited evidence of rapidly increasing awards and great variability across the country in awards for similar claims. 7 They also argued that juries were overly sympathetic to plaintiffs suing large corporations or other "deep pocket defendants." 8 The Rand Corporation Institute for Civil Justice and the American Bar Foundation recently conducted studies that examined the size and variability of jury verdicts. 9 The data from the Rand study on jury verdicts in San Francisco and Cook County (Illinois) from suggest two things. First, although the mean award in several "low-stakes" types of cases (e.g., automobile accidents, intentional torts) increased, plaintiffs in most jury trials received modest awards. 10 Second, while awards from Cook County juries increased substantially in a small fraction of cases, the median award did not increase. 1 Daniels and Martin collected data on state court jury verdicts in forty-three counties in ten states. 12 Their results indicate that median awards in most locations were modest (i.e., below $50,000), but that the size of awards did vary by locale (in a few locations, the median award exceeded $100,000). These researchers argue that large interstate variations dispel the notion that there is one clear national pattern. Therefore, empirical analyses of trends in jury verdicts suggest that reformers may have overstated their case by arguing that jury awards have increased dramatically in the recent past. Despite the questionable validity of these claims, the insurance industry successfully lobbied state legislatures to limit both the compensation available to plaintiffs and the options open to juries. This (1986) (discussing response to "deficiencies" in civil justice system that have resulted in increasingly pro-plaintiff liability and causation rules). 6. But see idi at 347 (questioning validity of argument that jury awards caused insurance crisis). 7. See Nutter, The Fight for CivilJustice Reform, 45 INS. REv. 2, 5-6 (1984) (noting increase in tort awards); What the U.S. Government Thinks About Tort Reform, 62 J. AM. INS. 23, 24 (1986) (arguing that explosive growth in tort damages has led to increased insurance costs). 8. But see Daniels & Martin, supra note 5, at 325 (concluding that there is no evidence to support view that juries are overly sympathetic to plaintiffs suing large corporations). 9. M. PETERSON, CIVIL JURIES IN THE 1980s: TRENDS INJURY TRIALS AND VERDICTS IN CALIFORNIA AND COOK COUNTY, ILLINOIS (The Rand Corporation Institute for Civil Justice, 1987) [hereinafter Rand Study] (analyzing trends injury awards from 1980 to 1984 in Cook County, Illinois and San Francisco County, California); see also Daniels & Martin, supra note 5, at 323 (finding that data does not support proposition that number of lawsuits resulting in enormous awards have increased rapidly). 10. Rand Study, supra note 9, at v. 11. Id. 12. Daniels & Martin, supra note 5, at 328.
4 808 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:805 campaign also may have had a more subtle, yet more powerful, effect. Forecasts of an "insurance famine" 13 and "threats to the American way of life"' 14 may have affected potential jurors, who are, after all, consumers. The publicity may have influenced their decisions about damage awards for many years to come. One commentator has suggested that the victim of this publicity may be a plaintiff's constitutionally guaranteed right to a fair and impartial jury trial and that the effects of such publicity on potential jurors may be tantamount to jury tampering. 15 In the fall of 1989, Aetna Life Insurance Casualty ran a series of "public issue" newspaper advertisements under the slogan "Lawsuit abuse: Enough is enough."' 16 Aetna's campaign and other similar publicity may have biasedjurors. For example, a trial court in Texas excused for cause a potential juror in a medical malpractice case when he admitted that his exposure to pretrial publicity might interfere with his ability to render an impartial verdict. 17 Nevertheless, the trial court had refused to allow the plaintiff to question the entire jury about the alleged lawsuit crisis.' 8 The Texas Supreme Court, however, held that the media coverage of the lawsuit crisis and tort reform had created the potential for bias, and the court's refusal to allow the plaintiff to question potential jurors concerning this bias constituted a denial of a fair trial.' 9 The purpose of the present study was to evaluate the relationship between jurors' attitudes and beliefs about tort reform and their decisions in the context of a mock personal injury lawsuit. 20 One question this study sought to answer was whether jurors who accept insurers' claims that high damage awards lead to spiralling insurance costs would advocate smaller awards in cases they decide. A related question was whether jurors who believe that there is a "liti- 13. Reid, Insurance Famine Plagues Nation, Wash. Post, Feb. 23, 1986, at Al, col Gest & Work, Sky High Damage Suits: The Impact on Consumers, Business, and Professions U.S. NEws & WORLD REP., Jan. 27, 1986, at Pavalon, The Insurance Industry: Do Its Ads Undermine Juiy Impartiality?, A.B.A. J., Nov. 1989, at See Galanter, The Day After the Litigation Explosion, 46 MD. L. REv. 3, 4 (1986) (describing Aetna's campaign and advertisements). 17. See Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 709 (Tex. 1989) (holding that trial court abused its discretion in not allowing counsel to voir dire jurors on media coverage of "insurance crisis"). 18. Id. 19. Id. at Another paper based on this study examines the impact on jurors' damage rewards of varying case facts and plaintiff characteristics. See Goodman, Greene & Loftus, Runaway Verdicts or Reasoned Determinations: Mock Juror Strategies in Awarding Damages, 29 JURIMETRICS J. 283, 308 (1989) (arguing that jurors try to make equitable awards, but not necessarily based on legally permissible means of computing damages). The analyses described here are being reported for the first time.
5 1991] JURORS' ATTITUDES ABOUT DAMAGE AWARDS 809 gation explosion" would attempt to contain costs by awarding less to the plaintiffs. On the other hand, jurors might assume that awards made in other cases reflect the "going rate" for different types of cases. 21 Some data support the contention that jurors are influenced by information presented in the media. For example, one study examined the effect on jurors of exposure to a single insurance advertisement about skyrocketing insurance costs resulting from inflated jury awards. 22 In this study, adults evaluated several magazine advertisements. The experimental group viewed a St. Paul Property and Liability Insurance Company advertisement that read, "Do you really think it's the insurance company that's paying for all those large jury awards? When awards are out of line, everyone pays more. In the form of higher insurance rates." 23 The control group did not read an insurance advertisement. All of the subjects returned the following day and participated in a mock jury study. The plaintiff in the case had been injured in an automobile accident. Mock jurors were asked to indicate what damages they deemed appropriate. The results showed that the subjects who had been exposed to the insurance advertisement awarded significantly less for pain and suffering than jurors who were not similarly exposed. 24 In contrast to previous research, the present study involved naturally-occurring exposure to publicity about tort reform in late 1986, when such publicity was at its height. We asked jurors about their familiarity with the publicity, but did not manipulate exposure. This study also differed from past efforts by using actual or prospective jurors. All the subjects in the study were either experienced or potential jurors awaiting jury selection. We asked jurors to read the facts of one of several types of wrongful death cases, decide on an appropriate damage award, and then answer a questionnaire concerning their beliefs about the tort reform movement and the "crisis" in civil litigation. 21. S. Daniels, Civil Juries, Civil Jury Verdict Reporters, and the Going Rate (paper presented at the annual meeting of the Law and Society Association in Chicago, 1986); H. Ross, SETfLED OUT OF COURT: THE SOCIAL PROGRESS OF INSURANCE CLAIMS (1970) (arguing that lawyers, juries, and insurance agencies look at jury awards in similar cases to determine how much a particular claim is worth). 22. Loftus, Insurance Advertising andjury Awards, A.B.A. J., Jan. 1979, at 68, Id. 24. Id, at 68.
6 810 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:805 I. METHOD A. Participants The participants were 213 experienced or potential jurors on call at the King County Courthouse in Seattle, Washington during the fall of Sixty-two percent of the subjects were female. The marital status of the subjects was as follows: fifteen percent never married, sixty-seven percent married, and seventeen percent divorced, separated or widowed. The mean age was forty-seven years. Approximately thirty-six percent had a university degree, and an equal number had completed some college courses. B. Procedure While the potential jurors were awaiting jury selection, the jury administrator invited them to participate in a study requiring approximately thirty minutes of their time. The volunteers received a packet containing a consent form, instructions, a written summary of a wrongful death case, and a questionnaire. They also received instructions to work independently. C. Materials The jurors first read a trial summary that gave a brief synopsis of the facts leading to the wrongful death of a plantiff. Eight different versions of facts were distributed. One group ofjurors read about a product liability case in which a thirty year old male was involved in a fatal accident caused by a malfunction of the accelerator pedal of his car. The second group read about a negligence case in which a fatal automobile accident occurred when a driver failed to stop for a thirty-year old male pedestrian. The third group read about a medical malpractice case in which medical personnel injected a thirtyyear old male patient with a substance to which they knew he was allergic. Groups four, five, and six read about the same three cases except that in each instance the decedent was a thirty-year old female. Group seven read the same product liability case as the first group but with a sixty-year old male plantiff. Group eight read this same product liability case with the ownership of the car slightly changed. We told the mock jurors that the plantiff had already proven the liability of the defendant and that their task was to determine an appropriate damage award. 2 5 After awarding damages, jurors responded to the following ques- 25. For a more complete description of the materials, see Goodman, Greene & Loftus, supra note 20, at 308.
7 1991] JURORS' ATrITUDES ABOUT DAMAGE AWARDS 811 tion: "I estimate that the percentage of plaintiffs who receive jury awards over a million dollars is about -%." Subsequently, they completed a brief attitude survey which consisted of twenty statements. The jurors indicated on a five-point scale (strongly agree, agree, no opinion, disagree, strongly disagree) the extent to which they agreed or disagreed with each statement. The survey covered three main topics: (1) jurors' beliefs about the "insurance crisis" and the need for tort reform; (2) their assessment of the influence that the media has on attitudes about civil lawsuits; and (3) the credibility they attribute to attorneys and their willingness to award damages requested by attorneys. 26 Finally, they completed a short demographic survey. II. RESULTS A. Estimates of the Percentage of Plaintiffs Whose Awards Exceed $1 Million One question asked the jurors to estimate the percentage of plaintiffs who receive jury awards in excess of a million dollars. We compared their estimates with figures compiled by the Rand Study 26. Attitude Questionnaire: Indicate whether you agree or disagree with each of the following statements. In each case, assume that there is evidence showing the defendant is liable, and that the plaintiff is entitled to recover some money to compensate for an injury or damages. SA = Strongly agree A = Somewhat agree D = Somewhat disagree SD Strongly disagree N = No opinion 1. No one deserves more than a million dollars in damages. 2. I would use the figures the lawyers suggest in deciding how much money to award. 3. The media exaggerate the number of high jury awards. 4. The insurance industry is not experiencing a crisis because of high jury awards. 5. I would use the amount the lawyers suggest as a starting point, then subtract to arrive at a reasonable amount. 6. Only extraordinary or sensational cases are reported in the news. 7. There are too many lawsuits. 8. I would use the amount the lawyers suggest as a starting point, then add more to arrive at a reasonable amount. 9. People overestimate the number of high jury awards. 10. I would trust the figures lawyers suggest in asking for damages. 11. Most jury'awards are too high. 12. High jury awards lead to increased insurance premiums. 13. People underestimate the pain and suffering of someone who is seriously injured. 14. The insurance industry is in a crisis. 15. Newspapers led me to believe jury awards are too high. 16. Lawyers ask for twice as much in damages as is warranted. 17. Most jury awards are reasonable and justified. 18. Television led me to believe jury awards are too high. 19. Lawyers encourage people to file unnecessary lawsuits. 20. People underestimate the emotional impact of losing a loved one in an accident.
8 812 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:805 which indicate that less than six percent of trials won by plaintiffs result in damage awards of over one million dollars. 27 The jurors' CK 0 Io I.I z 00 C-) 5- a_ ESTIMATES OF THE PERCENTAGE OF PLAINTIFFS WHOSE AWARD EXCEEDS $1 MILLION Fieure 1. Percent of jurors who gave each ebtimate of likelihood of a million dollar award. estimates ranged widely, from a low of one percent to a high of eighty-five percent. The mean response was fifteen percent; the median was five percent. Surprisingly, eleven percent of the subjects indicated that at least half of all plaintiffs are awarded damages in excess of a million dollars. Forty percent of the jurors believed that between seven percent and forty-nine percent of all plaintiffs receive over a million dollars in damages. Fifty percent of the jurors gave estimates more in line with the Rand figure, that less than six percent of all damage awards exceed one million dollars. 28 Figure 1 shows the frequency distribution of jurors' responses to this question. 27. Rand Study, supra note 9, at 33. This study indicates that between 1980 and 1984, 5.6% of the plaintiffs who prevailed in San Francisco were awarded a million dollars or more. Id. In Cook County, plaintiffs received at least a million dollars in only 3.5%7 of the trials they won. Id. Percentages may vary in other parts of the country. 28. Id. at 52. The Rand data refer to the percentage of million dollar awards in cases in which the plaintiff prevailed. Id. This study asked about the percentage of plaintiffs who receive a million dollars or more without distinguishing between prevailing plaintiffs or all plaintiffs. If these jurors interpreted the question as referring to all plaintiffs, then an even greater discrepancy exists between their estimates and actual awards to plaintiffs.
9 1991] JURORS' ATTITUDES ABoUTr DAMAGE AWARDS 813 Figure 1 shows that a substantial number of potential jurors believe that million dollar awards are common. We wondered whether these individuals would award damages in a civil case differently than jurors whose beliefs were more realistic. B. Correlation Between Estimates of Percentage of Million Dollar Awards and Mock Juror Damage Awards We analyzed the data to determine the relationship between the jurors' beliefs about the percentage of plaintiffs who receive large damage awards and the amount they awarded in a mock personal injury case. In other words, we sought to determine whether ajuror who believes that million dollar awards are commonplace tends to award more or less than a juror who believes that million dollar awards are rare. Ifjurors believe that million dollar awards are common, they may award more because they use such awards to establish a "going rate." Alternatively, they may give smaller damage awards if they view these awards as excessive or extravagant. The mean damage award in the mock trial was $624,000; the median award was $410,000. Awards ranged from a low of $1,000 to a high of $10 million. To facilitate meaningful analysis, three awards that were very extreme, either low (e.g., $1,000) or high (e.g., $10 million) were omitted. 29 The remaining awards ranged from $5,000 to $4 million. We conducted the following analyses on these remaining responses. There was a significant positive correlation between jurors' estimates of the number of plaintiffs who receive large awards and jurors' damage awards in the mock trial. 30 The greater the presumed frequency of plaintiffs who receive million dollar damage awards, the larger the damage award in the mock trial. In other words, jurors who believed that million dollar awards were common tended to award more, not less. C. Responses to the Attitude Survey In the following sections, the results are organized by topic rather 29. The elimination of scores that are several standard deviations from the mean is common procedure for proper data analysis. The purpose of such elimination is to avoid any misleading skewing of the data that would result from including very extreme scores. 30. The statistical analysis revealed that r=.16 and p=.03. The symbol r represents the coefficient of correlation. ARMORE, INTRODUCTION TO STATISTICAL ANALYSIS AND INFERENCE FOR PSYCHOLOGY AND EDUCATION 429 (1967). This measures the degree to which two variables are related. Correlation coefficients can range from -1 (high negative correlation) to + 1 (high positive correlation). Id. The symbol p represents the significance level of the statistical test. The level p=.03 means that there is a.03 likelihood that the result is due to chance factors and a.97 likelihood that it is due to nonchance factors.
10 814 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:805 than the order in which jurors responded to the questions. For purposes of presenting the data, we combined the "strongly agree" and "agree" responses as well as the "disagree" and "strongly disagree" answers. The "no opinion" responses were discarded. 1. Beliefs about the tort reform movement and the "insurance crisis" When asked whether a litigation explosion has occurred, leading to a crisis in the insurance industry-the issue at the heart of the tort reform controversy-ninety-one percent of the jurors agreed that there are too many lawsuits. In a follow-up question, seventy-eight percent of the jurors agreed with the statement that one possible cause of the litigation explosion is that lawyers encourage people to file unnecessary lawsuits. Responses to a question about the existence of a crisis in the insurance industry indicated less consensus. Forty-eight percent of the jurors agreed that the insurance industry is experiencing a crisis. A similar question phrased in the negative produced consistent results; fifty-five percent of the respondents agreed that there is no insurance crisis. A number of survey questions probed the jurors' attitudes about large damage awards. When we asked the jurors whether there is a connection between high damage awards and escalating insurance premiums, they indicated their belief that insurance costs, and ultimately premiums for coverage, are affected by large damage awards. Eighty-seven percent of the jurors agreed that high jury awards lead to higher insurance premiums. We asked the jurors whether they believed that most jury awards are too high. Sixty-two percent of the subjects agreed with this statement. A related question asked if they believed that most jury awards are reasonable and justified. Only thirty percent felt that they are reasonable. We also asked the jurors whether they believe that most people overestimate the number of high jury awards. Eighty-four percent agreed with this statement. In addition, we asked for reactions to the statement, "No one deserves more than a million dollars in damages." Thirty-seven percent of the subjects agreed with this statement. To probe the subjects' attitudes concerning the aspects of damages most affected by tort reform, such as caps on monetary awards for pain and suffering and emotional losses, we asked if the jurors believed most people underestimate the pain and suffering of someone who is seriously injured. The responses indicated that sixty-six percent of the jurors agreed that damages for pain and suffering are
11 1991] JURORS' ATITUDES ABOUT DAMAGE AWARDS 815 underestimated. When asked whether they agree that people underestimate the emotional impact of losing a loved one in an accident, sixty-eight percent answered affirmatively. 2. The influence of the media on jurors' attitudes about civil lawsuits In order to ascertain the jurors' beliefs about the source of their attitudes, we asked whether they thought their attitudes were influenced by the media. In general, the subjects were more likely to attribute their beliefs to newspapers rather than television. Fiftyeight percent affirmed that newspapers had led them to believe that jury awards are too high; forty-four percent felt that they had been influenced by television coverage. We also asked the jurors if they believe that the media tend to exaggerate the number of high jury awards. Seventy-seven percent of the jurors agreed with this statement. In a related question, we asked whether jurors believe that the media report only extraordinary or sensational cases. Eighty-one percent of the respondents felt that this was the case. 3. Beliefs about attorney credibility Given that many jurors have been exposed to news reports about high jury awards, and because attorneys may be seen as partially responsible for the litigation explosion, we wondered whether jurors would be biased against the damage estimates of lawyers and, therefore, discount damage requests that lawyers present to juries. We asked four questions to assess this possibility. First, whether the jurors would trust the damage figures that lawyers suggest. Only twenty-three percent of the jurors indicated that they would trust the lawyers' figures. Second, we asked whether they would use the figures suggested by the lawyers in deciding how much money to award. The responses to this question also reflected a mistrust of lawyers; only forty percent of the jurors indicated that they would use this information in determining damages. We asked two further questions about the manner in which jurors might use the information provided by attorneys. Without referring specifically to the suggestions of either plaintiff or defense counsel, we asked jurors if they would use the amount suggested by the lawyers as a starting point, and then either subtract from or add to this amount to arrive at a reasonable sum. Fifty-three percent indicated that they would subtract from the amount suggested by the attorneys. Only sixteen percent indicated that they would add to the figure suggested by the attorneys.
12 816 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40: Correlation between responses to attitude survey and mock juror damage awards We wondered whether there is a relationship between jurors' attitudes on issues such as tort reform, the influence of the media on jury awards, and the credibility of attorneys on one hand, and the damages they award in a particular personal injury case on the other hand. Recall that we informed the mock jurors that the plaintiff had already proved liability in the case and the jurors' only task was to compensate the plaintiff. To examine this issue, we recoded and combined the jurors' responses to the twenty attitudinal statements producing an overall total attitude score. Negative attitudes regarding damage awards (e.g., "no one deserves more than a million dollars in damages," "there are too many lawsuits") fell on the lower end of the scale, and positive attitudes towards damage awards (e.g., "the insurance industry is not experiencing a crisis because of large jury awards," "I would use the amount the lawyers suggest as a starting point, then add more to arrive at a reasonable amount") fell on the higher end of the scale. Responses generally favoring tort reform had lower numbers; responses generally unsupportive of tort reform had higher numbers. There was a significant positive correlation (r =.20, p =.005) between the jurors' total attitude score (the sum of the recoded responses to twenty attitude statements) and their damage awards in the personal injury case. Jurors who favored tort reforms gave lower awards; those who did not see the need for reform gave higher awards. III. DISCUSSION The purpose of this study was to evaluate the relationship between jurors' attitudes and their decisions. Do jurors' beliefs about the number of large jury awards in general affect their damage awards in a mock trial? We found a significant correlation between attitudes and verdicts: thejurors who agree that damage awards are excessive and that tort reform is necessary generally gave lower awards than their counterparts who did not see a need for tort reform. We also correlated the jurors' estimates of the percentage of plaintiffs awarded more than one million dollars with their own damage awards in the mock trial. A significant negative correlation might have suggested that the jurors "penalize" plaintiffs in the mock trial for what they perceive as excessive awards received by
13 1991] JURORS' ATrTFUDES ABOUT DAMAGE AWARDS other plaintiffs. Instead, a positive correlation was found between the awards in the mock trial and estimates of the frequency of large awards in other cases, suggesting that jurors use information about the rewards as a sort of benchmark; these awards set the "going rate." 3 With respect to insurance costs, the results of the attitude survey yielded a mixed picture. On one hand, a large majority of the jurors surveyed agreed that there has been a litigation explosion and that insurance costs have been affected by large damage awards. On the other hand, the jurors were apparently not persuaded that an insurance "crisis" exists. The data also suggest that a majority of the jurors would not penalize plaintiffs in civil suits based on their perception that insurance costs are rising. In fact, our findings suggest that under certain circumstances, jurors may be quite generous. A majority of the jurors agreed that some plaintiffs deserve in excess of one million dollars in damages, and that people may underestimate both the pain and suffering of injured.plaintiffs and the emotional impact of losing a loved one. The data on the jurors' attitudes toward the media and their beliefs about the credibility of attorneys are more dear: neither group garnered high marks. A majority of the subjects agreed that the media tend to exaggerate the number of high jury awards and report only extraordinary or sensational cases. Indeed, the media rarely report that in many cases involving substantial awards, the final disbursement is much smaller than the original verdict. The trial judge or appellate court may reduce the reward, the verdict may be reduced through post-verdict settlement discussions to avoid appeal, or the defendant may have inadequate assets or insurance to satisfy the judgement. 3 2 Attorneys generally received low marks for trustworthiness. A majority of the jurors agreed that attorneys encourage people to file frivolous lawsuits. Furthermore, most of the subjects said that they would not trust attorneys' estimates of appropriate damage awards. Other results suggest the jurors have not been "snowballed" by the claims made by the insurance industry. Although the respondents slightly overestimated the percentage of plaintiffs who receive 31. See supra note 21 and accompanying text (arguing that juries evaluate claims by looking at awards in other similar cases). Experienced lawyers learn that different juries will award similar damages for similar injuries. H. Ross, supra note 21, at See Broder, Characteristics of Million Dollar Awards: Jury Verdicts and Final Disbursements, 11 JusT. Sys.J. 349, 353 (1986) (finding that existing evidence indicates that plaintiffs' awards are usually reduced).
14 818 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:805 damage awards of one million dollars or more and a minority of the jurors' estimates were completely off-base, approximately half of the jurors gave reasonably accurate estimates that roughly five percent of winning plaintiffs receive awards of this size. 33 Professor Saks pondered the "large gap [that] exists between the widespread perception that the American litigation system is wildly out of control and the picture that emerges from an examination of the available evidence." 34 Our data suggest that the gap may be narrower than Saks implies. Despite the general belief among the jurors that there has been a litigation explosion in the face of empirical evidence suggesting otherwise, 35 and although jurors may agree that large damage awards result in higher insurance costs, there is little other data to indicate that jurors think the system is "wildly out of control." In fact, the jurors did not universally endorse the principles of tort reform, and many believe that some plaintiffs deserve substantial sums as compensation for their injuries. There are some clear limitations to generalizations based on these data. First, we sampled jurors from only one location. The amount or type of media coverage may vary considerably in different parts of the country. As a consequence, jurors in other locales may have different attitudes and beliefs about the issues studied. Second, jurors in our sample were fairly well-educated. More than one third of the respondents had college degrees, while another one third had some post-secondary education. (The educated jurors may have been more likely to volunteer to complete the survey). If the average level of education of most juries in the country is substantially lower than that of the jurors surveyed, the views discussed here may not accurately represent the views of all jurors. Finally, it is unclear how jurors' attitudes about the "insurance crisis" and the need for tort reform influence their verdicts in actual cases. Professor Visher suggests that jurors are generally able to judge a case on the merits of the evidence presented without being 33. See supra note 28 and accompanying text (comparing Rand estimates of million dollar awards with respondents' estimates). 34. See Saks, If There Be a Crisis, How Shall We Know It?, 46 MD. L. REV. 63, 74 (1986) (arguing that general litigation explosion has not occurred). 35. See Roper, The Propensity to Litigate in State Trial Courts, , , 11 JUST. Sys. J. 262, 264 (1986) (commenting that most cases are settled, withdrawn, or defaulted); Galanter, supra note 16, at 5 (criticizing view that American society is overly litigious); Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (And Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REv. 4, 5 (1983) (maintaining that only small number of injuries become disputes, and only small portion of disputes become lawsuits); McIntosh, 150 Years of Litigation and Dispute Settlement. A Court Tale, 15 LAw Soc'y REv. 823, ( ) (contending that courts try to settle tort cases).
15 1991] JURORS' ATTITUDES ABOUT DAMAGE AWARDS 819 influenced by extra-evidential information. 6 Until a study is conducted that compares jurors' attitudes with the verdicts they deliver in real cases, this question will remain unresolved. Since we conducted this study there have been numerous developments that have changed the nature of the debate about tort reform, the "insurance crisis," and the "litigation explosion." First, in the late 1980s, courts across the country began to strike down laws limiting damage awards in certain kinds of cases. In 1988, for example, the Kansas Supreme Court voided a law providing for maximum total damages of one million dollars for medical malpractice cases and $250,000 for "non-economic losses" such as pain and suffering, mental anguish, and injury and disfigurement not affecting earning capacity. 3 7 Other courts also have upheld large damage awards, declaring limits on damage awards to be unconstitutional. 38 Second, one commentator cited an alternative explanation for the "litigation explosion"-increased filings by corporations relating to contract disputes. 3 9 This suggests that one of the assumptions underlying the tort reform movement, that the increase in the number of tort cases is virtually out of control, may be based on inaccurate information. 40 Finally, twenty states filed antitrust lawsuits against four major insurance companies and other defendants, alleging that they had illegally conspired to limit the availability of commercial general liability insurance in order to cut the costs of defending against claims. Predictably, the latest round of charges has "reignited the debate over the liability crisis and prompted a new barrage of rhetoric and namecalling. ' '4 1 These recent developments and publicity could influence juries in new ways. Will there be a backlash against the insurance industry? Or, will jurors ignore the latest installment of polemics and judge 36. VisherJuror Decsion Making: The Importance of Evidence, 11 LAw & HUM. BEHAV. 1, 13 (1987). 37. Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251, 263 (Kan. 1988). But see Samsel v. Wheeler Transp. Serv., 789 P.2d 541, 558 (Kan. 1989) (upholding cap limiting plaintiffs to $250,000 for non-economic losses in personal injury cases). 38. See Lucas v. United States, 757 S.W.2d 687, 692 (Tex. 1988) (voiding medical malpractice damage award cap of$150,000); Smith v. Department of Ins., 507 So. 2d 1080, (Fla. 1987) (holding that $450,000 statutory cap on noneconomic damages violated state constitution); Duren v. Suburban Community Hosp., 495 N.E. 2d 51, 56 (Ohio 1985) (upholding one million dollar award for pain and suffering, invalidating statutory cap of $200,000 for malpractice awards). 39. Barrett, Litigation Boom? Professor Turns Up a New Culprit, Wall. St.J., Oct. 17, 1988, at BI. 40. See id. (finding that between 1960 and 1986, number of tort cases filed in federal court increased 114%, while number of contract cases rose 258%). 41. Reske, Was There a Liability Crisis?, 75 A.B.A. J., Jan. 1989, at 46, 46. The states claimed that the insurance industry was largely responsible for the liability crisis. Id.
16 820 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 40:805 cases on the evidence and merits to award damages that are fair, reasonable, and appropriate?
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