What happens when civil jurors discuss pain and suffering during deliberations? Certainly the specific facts of the case, including what a plaintiff had to endure, affects the way jurors conceptualize “pain and suffering.” This concept of pain and suffering is well known to lawyers but jurors are given little guidance when asked to award money for this category. Sometimes jurors look to the jury instructions for direction, yet here is an exemplar of what they may find: No evidence of the dollar value of physical or mental/emotional pain and suffering has been or needs to be introduced. There is no exact standard for setting the damages to be awarded on account of pain and suffering. So how do jurors work through this?
Some jurors take a purely economic perspective when assessing pain and suffering. This type of juror uses other verifiable money amounts to help guide the way for this more amorphous facet of damages. For example, let’s say the plaintiff was badly injured in a car accident and sued the car manufacturer. The jury found the manufacturer made a defective part which caused the injuries suffered by the plaintiff. How much is the plaintiff’s pain and suffering worth to this “Purely Economic” juror?
As mentioned, it is undeniable that economic damage categories help shape how jurors view the more nebulous ones like pain and suffering. In our example, suppose the plaintiff has $750,000 in medical damages, and was out of work for 2 years where he made $100,000 a year. When the “Purely Economic” juror gets to pain and suffering, he/she will use the $100,000 per year amount to inform his/her judgment on what to award for pain and suffering. This juror might say “give him a total of half his lost yearly salary so $50,000 for pain and suffering” or some variation of that. This prototype juror might say, “Give him $100,000 for each year of pain and suffering (his salary) when he couldn’t work so let’s award $200,000.” This juror will use the same base but different multipliers to determine the pain and suffering award.
In venues where attorneys can suggest an amount, the “Follow the Requests” juror uses the amounts articulated by the attorneys to inform his/her understanding of what to award for pain and suffering. Perhaps the plaintiff attorney said this should be worth $500,000, and the defense said it should be zero. Alternatively, the defense might say to the jury that if it gets to that question then $50,000 is more reasonable. With a ceiling ($500,000) and an anchor ($50,000), many jurors in this condition will believe the amount is somewhere in between depending on how reasonable each recommendation was believed to be. In this example, a jury would rightfully say that the average of what the plaintiff wants and what the defense says it is worth is $275,000.
Sometimes in a jury deliberation each member comes up with their own amount for pain and suffering, then all individual numbers are submitted to the foreperson (or juror in charge of calculations) to come up with an average amount. This amount is often a starting point for negotiations within the jury or in some juries this becomes the amount they decide to award. I frequently see in deliberations a juror take out his/her calculator (or now smart phone) and compute a group average. [As an aside, it is important that a member of the jury double check the person doing the calculating especially because that person may have ulterior motives. At a mock trial where deliberations are seen, I once saw the foreperson grossly miscalculate, resulting in an amount significantly more than what it should it have been. Specifically, this plaintiff-leaning/high damage foreperson told everyone the average amount from all members of the jury totaled $600,000 but the correct calculation was really $375,000. No one challenged him or double checked his work].
Other “Maverick” jurors put little or no credence on what numbers the attorneys suggest. In fact they like to disregard attorney suggestions. This type of juror feels empowered by the ability to render an award outside of the recommendations, and goes out of his or her way to remind fellow jurors the attorneys are just vouching for their client and that it is entirely up to them to award anything they want. I have heard some plaintiff-leaning jurors in deliberations say, “Her (plaintiff) attorney asked for a total of $3 million but I would have asked for more, and am inclined to award more.”
Most of the time when jurors look to each other for guidance on pain and suffering, someone says “There is no price you can put on going through that” or “I can’t imagine what going through that would be worth” or “I wouldn’t endure that for any amount of money.” Then the dust settles and jurors try to be reasonable (of course there are exceptions) about what to award.
The presence or absence of other damage categories is of utmost importance. If a plaintiff is asking to be compensated for pain and suffering, as well as other compensatory damage categories such as for loss of a normal life, emotional distress, etc., then consideration for pain and suffering can get watered down in the minds of many jurors, who often keep track of a running total. I have heard jurors say, “We should give money for pain and suffering, but it sounds a lot like ‘humiliation’ and ‘embarrassment’ so let’s limit what we give here.” Also, if jurors know punitive damages are around the corner this too will likely influence how they approach pain and suffering.