Understanding what does and does not motivate jurors to award damages
Sympathy does not motivate jurors
Contrary to much of what is implied by “tort reform” advocates, juries are not wellsprings of sympathy. If they ever were, decades of tort reform publicity have erased that inclination. Simply stated, sympathy is not an emotion that motivates most jurors to take a stand for plaintiffs.
Furthermore, the court’s instruction in most jury charges, that jurors are not to decide the case on sympathy, gives defense-oriented jurors the moral ammunition to actively oppose sympathy in the jury room.
Therefore, the perception among jurors that plaintiffs are appealing to sympathy becomes an obstacle to recovery and feeds negative biases. As a result, plaintiff’s lawyers clearly must articulate better motivations for jurors to argue for the full extent of the plaintiffs’ damages.
Anger does not motivate jurors
Anger is generally a much more powerful motivator for jurors than sympathy. But to simply say that anger is the answer still falls short for two reasons:
1. Anger does not work.
At least early in the case, it does not work to tell jurors that you are angry or that they should be angry. Until they experience the anger for themselves, any expression of anger by the attorney falls flat at best, and at worse, it can be perceived by jurors at a subconscious emotional level as attacking them.
Shared anger is powerful, but it is off-putting to be the recipient of anger, even when he or she knows at a conscious level that it’s directed at someone else.
2. Anger is incomplete as a motivator.
Anger is an emotion, not a value. Emotions come and go, but values stay. To be most powerful, rather than simply a transient emotion, anger needs to be attached to a positive value, a value that a juror personally believes in and perceives to be worth fighting to protect.
A sense of significance motivates jurors
Jurors are like the rest of us. We all have an inherent desire for significance, to do and stand for values that matter.
You want to present a story of conflict with a climax and resolution still to be played out in the jury room, giving the jury the chance to be the hero of the story through the assessment of damages. In virtually every case there are values that affect more than just the parties to the lawsuit:
- An environmental contamination case isn’t just about a decrease in the plaintiff’s property value, it’s about jurors insisting on responsible industrial waste disposal practices that affect the whole community.
- A product liability case isn’t about one product affecting one family, it’s about protecting multiple families and the safety standards that families are unknowingly dependent on.
Early in the case, an experienced plaintiff’s attorney will articulate why the significance of the case extends beyond just the parties involved. They will show the values at issue, and how a full damage verdict will protect those values for the community. The same message, of standing for values that matter, is then a part of all that follows in the trial.
There is a bonus for a plaintiff’s lawyer that goes with this process. As they identify the values that matter to these jurors, and bring home to them how they can stand for these values in a way that protects their community and their families, plaintiff’s lawyers are also creating an empathetic bond between the jurors and the plaintiff. Empathy is not feeling sorry for someone; it is the feeling of experiencing what someone else is experiencing. As jurors become focused on protecting a value (such as keeping local highways safe for families, in an auto collision case), it is simultaneously much more natural for them to identify with what the plaintiffs have sacrificed.
After years of “tort reform” advertising and politicizing, many jurors come into trial feeling that the values most in need of protection are business profits and insurance premiums (the availability bias at work). If plaintiff’s lawyers do not articulate the real values in the case, they are fighting uphill. On the other hand, if they approach trial with the idea that this is really about the jurors and the significance of what they can stand for and protect, rather than simply a case about the plaintiffs and what they have lost, then they are providing jurors a powerful motivator.
