By Melissa M. Gomez
Special to the Legal
Sympathy is a central part of any injury case, but from what I have seen in jury research and in trial, the true damage accelerator for defendants is anger.
In essence, jurors tend to look at damages in two ways: what the plaintiff deserves to receive and what the defendant deserves to pay. When looking simply at what a plaintiff deserves to receive, sure, sympathy plays a role, but so do other factors. Jurors are critical of and naturally curious about the plaintiff’s own role in what happened to her and the extent to which she has done what she needs to do to mitigate her damages. They question why this plaintiff deserves millions of dollars for her injuries when the jurors themselves may have experienced their own injuries (or those of loved ones) and have not received nor asked for a dime.
When dealing with what a defendant deserves to pay, though, jurors who find behavior blatant or egregious, or who find a defendant arrogant or dismissive of the plaintiff and her injuries will often make that defendant pay through the nose, despite what the plaintiff “deserves.” This can be true whether or not there is a line on the verdict sheet for punitive damages.
It is also important to note that there is more work involved in managing juror anger than sympathy in trials. Sympathy is natural and automatic. It tends to hit immediately and jurors marinate in it throughout trial. It also tends to fade as jurors become used to the idea of what happened. They get desensitized. Anger, on the other hand, grows.
In a case in which a child was killed in an appliance fire, jurors struggled with what his mother deserved in compensation. The case was horrible, and the natural sympathy toward this mother, experiencing the death of her child in the way she did, was automatic and strong. There was evidence, though, that she had left the child in the room with a burning appliance to get some water, only to find the child trapped by fire in that room by the time she returned. Jurors struggled with enriching a mother when she had a clear opportunity to get her child out of harm’s way.
On the other hand, as the evidence was presented against the defendant, the appliance manufacturer, it became clear to the jurors that the company knew that this appliance had some issues with causing fatal fires, yet the corporate witnesses could not provide any information regarding what the company did with that information. The witnesses were arrogant and unlikable and, in the piece de resistance, the defense pointed to a photographed and unidentified object as the alternative cause. That object turned out to be a simple black bag that the plaintiff was able to obtain and hold up for the jurors in the courtroom.
By the time they went into deliberations, the jurors were angry. Not only were jurors angered by what the corporation did in regard to its knowledge of its product’s safety concern via the evidence, but this perceived bad behavior was illustrated and exacerbated by what was seen as bad behavior in the courtroom via misleading arguments and unlikable corporate representatives. In deliberations, anger pervaded the decisions. The mother’s failings no longer mattered and the damage award was well over $10 million dollars.
Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at [email protected] or call 215-292-7956.