Cognitive Bias in Jury Damages Utilizing Cognitive Biases to Legal Advantage

Assuming that the putative view of an ordinary citizen, unaffiliated with the judicial system, is one that the merits of a case are based solely based upon a presentation of facts is common. However, several psychological predispositions illustrate the strategic role that attorney's assume in jury selection. Understanding the philosophy underlying the moral psychology of the mind offers insights into how both the case for plaintiffs and defendants are open to suggestive framing.

The determination and award of damages in cases that comprise compensatory damages is easily quantified, however considering pain and suffering compensation presents fertile ground for legal study. Empirical studies of jury awards demonstrate that the framing of damage by plaintiffs is influential to the outcome. Similarly, preconceived notions of sexual harassment and prior psychological trauma bear influence upon cases that counsel must be aware of to mitigate.

In examining the method of presentation for claims of 'pain and suffering,' the calculating formula influences jury awards in certain situations. A study by McAuliff and Bornstein, demonstrates that the manner in which pain and suffering damage recommendations are presented to juries introduces variability (McAuliff & Bornstein, 2009). Presenting potential...

McAuliff and Bornstein particularly note that their findings may point to the fact that jurors are unlikely to do any actual calculations, but rely upon heuristics to "shortcut" their views on the merits of a damage recommendation:
Pain and suffering awards were larger for the $10/hour per diem argument and $175,000 lump sum conditions compared to the $7,300/month per diem argument and no award recommendation conditions. The difference between participants' awards in the $240/day condition and all other conditions was not statistically significant (McAuliff & Bornstein, 2009, p. 172).

The noteworthiness of the findings lies in uncovering that attorney's are more apt to win higher damages if recommendations are based on a seemingly low per diem rate of 10.00 per hour, rather than providing a mathematically equivalent rate of 7,300.00 per month provides a more concrete basis for a juror to conclude the damages are excessive. The contrasting damage recommendation of 7,300.00 per month illustrates that jurors may be shifting their focus from an assessment of fair damages based upon the case to a comparative measure of the monthly amount. If jurors were fully engaged in a conscious calculation of damages based upon the merits…