Determining Damages: the Psychology of Jury Awards.

Edie Greene Brian H. Bornstein American Psychological Association www.apa.org 238 pp., $39.95

There is something uncharitable about critics who heap scorn on jurors, particularly jurors charged with translating idiosyncratic and often immeasurable injuries into dollars-and-cents damage awards. Such jurors, after all, face a daunting series of tasks for which they possess little background and receive scant guidance.

How, for example, can a layperson accurately determine the sorts of rehabilitative services an industrial-accident victim will need in 10 years and what those services might cost? What are the future earnings of a bright high school student, disabled in a car crash, who has not yet chosen a career? How large an award would constitute fair compensation for the pain and suffering of losing an eye? How high must punitive damages be to command a large corporate defendant's attention? These questions might spawn endless debates among philosophers and economists, yet citizen-jurors are asked to answer them in concrete terms and without violating complex legal rules.

In this well-documented book, psychologists Edie Greene and Brian Bornstein review significant social scientific studies--many their own--on how juries determine compensatory and punitive awards. One of their central goals is "to lend an empirical foundation to the rhetoric and calls for reform that surround jury decisions on damages." They review relevant evidence competently, and generally offer measured interpretations of data.

Greene and Bornstein have four audiences in mind: social scientists, policy-makers, practicing lawyers, and the general public. They speak in a voice best suited to the first, especially graduate students, psycho-legal researchers, and other academics interested in the civil justice system.

Two themes pervade the book. First, although they include some studies based on actual trials, Greene and Bornstein clearly believe that jury simulations offer the best chance for understanding the jury system in general, and damages awards in particular. Second, the authors have little patience for "reformers" who claim that civil jurors are biased, capricious, excessively generous, and out of control. Nor do they believe that damages awards have "run wild." Rather, they cite research indicating that if jurors err, they do so by awarding damages that are too low.

Although many plaintiff lawyers will laud the thrust of this book's contribution to the policy debate, I suspect that readers who hope to harvest useful courtroom tips may be frustrated. Often, the authors simply confirm what most trial lawyers already know--for example, that jurors' knowledge of a defendant's reckless conduct or a plaintiff's negligence might influence (inappropriately) the determination of compensatory damages, or that jurors' beliefs about whether there are too many "frivolous" lawsuits or too many "runaway" jury awards affect their preferred award size or the likelihood that they will award punitive damages. Of course, the authors cannot be held responsible if the current state of psycho-legal research yields conclusions too general, too widely known, or too qualified to help litigators in their day-to-day practice.

One of the strongest sections of Determining Damages sketches an outline, derived from cognitive psychology, of how jurors reason about damages. Many trial attorneys will find this section fascinating, particularly the studies of juror reaction to the ad damnum (suggested award amount).

Not only are juror deliberations heavily influenced by the ad damnum, but considerable research suggests that, most of the time and with limits only at the extremes, "the more you ask for, the more you get." When the defense suggests a different amount, jurors select a number between the two. When the estimates and counter-estimates come from expert economic sources, they are accepted as more credible. Oddly, caps on punitive damages and pain-and-suffering awards have sometimes served to hoist such awards upward.

The final section of the book evaluates a host of suggested "reforms," including various damages-cap plans, separation of the liability and damages phases of a trial, separation of the compensatory and punitive damages phases, clarification of jury instructions, payment of punitive damages to the government, and the elimination of juries altogether.

Greene and Bornstein carefully review the relevant jury research but--for nearly all the proposed "reforms"--conclude that we do not yet know enough to make a decision and--in typical academic fashion--call repeatedly for further research. Because the research they review does not show a system in need of dire repair and because they fear the unintended consequences of hasty "reform," the authors counsel against instituting any of the proposals now.

This book serves a useful function by restoring modesty concerning what we know and what we don't know about how juries assess damages. After all, as Will Rogers said, "It isn't what we don't know that gives us trouble; it's what we know that ain't so." In this sense, Greene and Bornstein have succeeded in their desire to substitute data for rhetoric.

Neil J. Kressel is a professor of psychology at William Paterson University in Wayne, New Jersey, and coauthor, with Dorit F. Kressel of Stack and Sway: The New Science of Jury Consulting (2002).