If it’s broke, they’ll fix it.

That seems to be the mentality of many focus group and trial jurors when it comes to awarding damages.  They assume that if they award too much money, there is some mechanism within the legal system to “correct” their verdict.  We observe this same mentality when it comes to the common juror assumption that if a case makes it to trial, there must be some merit to it – otherwise, the system would have thrown it out along with other “frivolous” lawsuits somewhere along the line.

With damages, this perspective is particularly troubling since the tendency is virtually always to award more rather than less.  For jurors, the concern is that if they do not award enough money, the plaintiff will “run out” and might be stuck with no way to pay for medical care or other expenses.  This predisposition creates particularly fertile ground for the plaintiff attorney arguments that jurors often hear during closing – that this is the plaintiff’s only opportunity to recover money, so the panel has to make it count.

Unfortunately, it doesn’t go both ways, meaning we rarely see jurors award small amounts thinking it will be increased later.  We believe this is because judges can and do throw out “excessive” jury verdicts and either reduce the award themselves or grant a new trial.  Last October, a Los Angeles County Superior Court judge threw out a $417-million verdict against Johnson & Johnson – the largest talcum powder verdict in history.  In granting a new trial, Judge Maren Nelson determined “there was not convincing evidence that Johnson & Johnson acted with malice and the award for damages was excessive.”  Further, she noted the jury engaged in “serious misconduct.”

In 2016, another judge – also in L.A. County Superior Court – voided a $7.1-million award to a former Los Angeles Times sports columnist who had sued the paper claiming age and disability discrimination.  In doing so, Judge William A. MacLaughlin determined that based on what he heard during the trial, plaintiff T.J. Simers was not entitled to recover anything for lost earnings or emotional distress.

Although rare, these events garner enough media attention that jurors understandably assume judges do this far more often, and that regardless of the frequency, a judge has the power to “correct” a jury’s decision.  This leaves jurors wondering, why does our verdict matter? 

During our focus groups, we have started using different language to preface our damages discussion, emphasizing the seriousness and importance of the jury’s decision and the need to award an amount that is fair and reasonable for the injuries claimed rather than simply “whatever the plaintiff asks for.”  We also inject some lighthearted but crucial context for the kinds of numbers they might discuss, so participants understand their award shouldn’t be large enough to fund an aircraft carrier.

For example, that $417-million verdict in the Johnson & Johnson case?  That award could have purchased 2,000 Ferrari convertibles like the one in “Ferris Bueller’s Day Off,” two Boeing 777 airplanes or the Leonardo da Vinci depiction of Christ that recently fetched the world’s highest price for a painting.  When viewed in this light, even the most zealous plaintiff juror will struggle to justify such an award for one person.  It is no wonder that Los Angeles judge determined the jury’s verdict for a single plaintiff was excessive. 

If you have a case coming down the pike that has any chance of reaching runaway verdict status, reach out to Senior Vice President Claire Luna at cluna@juryimpact.net to discuss how we can help you better evaluate what jurors will think of the claim and refine the language you use in your arguments.