Understand Jurors’ Process on Pain and Suffering | Holland & Hart – Persuasion Strategies

Juror 1: “The next category is ‘Pain and Suffering’. How are we supposed to get this number? “

Juror 2: “It’s exactly what we want … there are no instructions for it.”

Juror 1: “How should we do that? Give a dollar worth of pain and suffering? “

Seeing such an exchange is pretty common when looking at a bogus personal injury test. You will have less information in the research exercise than in the actual trial, but ultimately you will not have much more guidance in the courtroom on the issue of pain and suffering.

There is a tendency to treat jury decisions about the dollar value of noneconomic categories such as pain and suffering as mysterious and potentially random. But if you watch this bogus experiment further, you’ll eventually see the process they use. It’s not fully predictable, and it’s not always what the law would expect, but there is a system. New research results support this. Cornell University researchers (Reed, Hans & Reyna, 2019, full text here) conducted three studies in which 763 mock jurors explain their own reasons for pain and suffering awards in two scenarios for personal injury / negligence. When looking at the reasons correlated with the actual awards, they found that only three factors predict damage awards: how much the injury affects life, which anchor number the juror heard, and which side the juror prefers. In this post, I’ll take a look at the research and its implications for arguing for and against prices of pain and suffering.

What predicts pain and suffering marks?

Based on research, three factors correlate with the numbers for pain and suffering:


When mock judges were asked about their reasons for their awards for pain and suffering, the two most frequently cited argument categories were the extent of pain and suffering (44.3 percent of cases cited) and the degree of impairment of life (46.7 percent of the Cases called) the time). Interestingly, this first category – the obvious one – wasn’t linked to the actual numbers assigned. But the second category was. The more jurors mentioned the harm to life caused by the injury, the more they awarded.


It has long been known that giving numbers around which the judges can “anchor” tends to work. This study further supports this, as providing an anchor resulted in significantly higher awards, especially if it was a meaningful anchor (in this case, the median income). One mock juror commented, “I was told the median annual income was $ 50,000 and I found her emotional suffering was quite severe, so I gave her 20 percent of that number.”


Liability and compensation are intended to be separate phases, and the research participants in this study should assume that the accused has already been held liable and that their only job was to determine the damage. In spite of this, the jurors in this and other studies will routinely “merge” the liability and compensation issues. Those who leaned towards the defense or questioned liability (for example, emphasizing in their comments that the accused did not act deliberately or maliciously) gave lower claims for damages. The researchers explain: “The jurors chose their core interpretation and not the law. This apparently leads to a certain discounting of the award. This tendency to reduce damage due to insecure liability is referred to as the “mild form of annulment by the civil jury”.

What causes uncertainty?

Another finding is that a focus on the uncertainty of pain and suffering calculations tends to reduce harm. In other words, “incalculable” means “incalculable,” and judges who said it was difficult or impossible to get to a number tended to get a lower number. Participants would justify their lower awards with statements like “Emotional pain sucks, but you can’t put a price on it” or “Money won’t” erase pain and suffering “.

For lawyers on both sides dealing with the subject of amounts of pain and suffering, it means the category will not be treated as a black box or random arrow thrown at a target. Think about the factors that convey the crowd. Handle the impairment of life from the injury, use anchor numbers when you can, and remember that your general favor and the inclination of the judges will also help determine that number. The researchers conclude with the following advice:

“Successful attorneys should therefore see part of their job in helping judges understand the heart of the violation. For a plaintiff’s attorney, this could mean developing a picture of a personable plaintiff, explaining how much the injury affected the plaintiff’s life, and offering meaningful anchors. A defense attorney might be more effective at making the defendant appear sympathetic by highlighting the defendant’s lack of responsibility, even in cases where the only concern is monetary damage. “


Reed, K., Hans, VP & Reyna, VF (2018). Awards Accounting: An examination of the judges’ reasons behind decisions regarding awards for pain and harm suffered. Denv. L. Rev., 96, 841.

Photo credit: Taken by the author, using his own Scrabble board

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