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Does itemizing impairment increase damage awards in civil cases?

Wednesday, January 18, 2012
posted by Douglas Keene

When we do civil pretrial research, there is generally a mock jury charge (jury questions). Sometimes the jury charge is simple and brief–liability and damages.

Other times, the jury charge is lengthy and every possible form of damages is itemized. It’s done because the attorneys know what these researchers have apparently just identified: more discreet elements of damage tend to make the overall damage award higher. Our view has been that it forces jurors to more carefully consider the ways that the negligence has affected the plaintiff.

Researchers designed an experiment where participants would designate either one, two [mental and physical] or four [mental, loss of enjoyment of life, disability and disfigurement] non-economic damage elements for a case in which they were told negligence had already been determined. Their findings are complicated.

Participants awarded more when they had to itemize four elements of damages than when instructed to make one decision.

Two choices, however, was not appreciably different than one choice. That is, splitting the single award into one award for physical injuries and one award for mental injuries did not appreciably increase the overall damage award.

When examining the specific damage awards, they found the mock jurors awarded the most for physical disability/impairment, followed closely by loss of enjoyment of life, and then about half these amounts for both mental anguish and disfigurement.

These results are fairly consistent with what we’ve seen in our pretrial research. The loss of life enjoyment (hedonic) damages is one we have seen eliciting higher damages from younger jurors (these mock jurors were undergraduate students). Our belief is that the idea of being ‘trapped in your body’ or ‘losing your freedom’ or is one that resonates particularly with young people.

However, we’ve also seen that limited life experience (i.e., being young) also drives down damage awards in general due to a lack of understanding of how serious physical injuries become chronic over time and may result in additional impairment and expense–as well as due to simply being young and generally healthy and lacking experiences with which to empathize.

Overall, our experience confirms the findings in this new study– itemizing damages drives higher awards. If you are plaintiff in a venue that permits a lengthy set of special damages or damages ‘lines’, it is generally smart to take advantage of it.

Gregory, A., & Winter, R. (2011). More than the sum of its parts? Itemizing impairment in civil cases Legal and Criminological Psychology, 16 (1), 173-187 DOI: 10.1348/135532510X496204

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