Decisionmaking about general damages: A comparison of jurors, judges, and lawyers

Michigan Law Review

Volumn 98, Issue 3, 1999, Pages 751-821

  Wissler, Roselle L ^b   Hart, Allen J ^b   Saks, Michael J ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0002416083     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290315     Document Type: Article

References (271)

1. 1962-1963 HARVARD LAW SCHOOL DEAN'S REPORT 5-6, quoted in HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 5 (1966).
2. 1962-1963 HARVARD LAW SCHOOL DEAN'S REPORT 5-6, quoted in HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 5 (1966).
3. See JEROME FRANK, LAW AND THE MODERN MIND 183-99 (6th ed., Anchor Books 1963).
4. Id. at 195; see also JEROME FRANK, COURTS ON TRIAL 111-25 (1949).
5. See Michael J. Saks, Do We Really Know Anything About the Behaviour of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1161 (1992) ("The trouble with legislation by anecdote is not just that some of them are false or misleading. Even if true and accurate, anecdotes contribute little to developing a meaningful picture of the situation about which we are concerned. . . . The proportion of cases that results in one or the other error, and the ratio of one kind of error to the other, ought to be of greater interest to serious policy-makers than a handful of anecdotes on either side of the issue."); Marc Galanter et al., How to Improve Civil Justice Policy, 77 JUDICATURE 185, 185 (1994) ("Improving the civil justice system requires thoughtful, objective analysis based on sound empirical data. The lack of systematic, cumulative data in this area makes it possible for far- reaching policy proposals to be advanced on the basis of tendentious anecdotes and numbers. A bias in which solutions to perceived problems are developed by reference to unusual and atypical cases goes unchallenged. Not surprisingly, the effects of the resulting policies are often unanticipated."), quoted in Brian J. Ostom et al., A Step Above Anecdote: A Profile of the Civil Jury in the 1990s, 79 JUDICATURE 233, 234 (1996).
6. See Michael J. Saks, Do We Really Know Anything About the Behaviour of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1161 (1992) ("The trouble with legislation by anecdote is not just that some of them are false or misleading. Even if true and accurate, anecdotes contribute little to developing a meaningful picture of the situation about which we are concerned. . . . The proportion of cases that results in one or the other error, and the ratio of one kind of error to the other, ought to be of greater interest to serious policy-makers than a handful of anecdotes on either side of the issue."); Marc Galanter et al., How to Improve Civil Justice Policy, 77 JUDICATURE 185, 185 (1994) ("Improving the civil justice system requires thoughtful, objective analysis based on sound empirical data. The lack of systematic, cumulative data in this area makes it possible for far-reaching policy proposals to be advanced on the basis of tendentious anecdotes and numbers. A bias in which solutions to perceived problems are developed by reference to unusual and atypical cases goes unchallenged. Not surprisingly, the effects of the resulting policies are often unanticipated."), quoted in Brian J. Ostom et al., A Step Above Anecdote: A Profile of the Civil Jury in the 1990s, 79 JUDICATURE 233, 234 (1996).
7. See Michael J. Saks, Do We Really Know Anything About the Behaviour of the Tort Litigation System - And Why Not?, 140 U. PA. L. REV. 1147, 1161 (1992) ("The trouble with legislation by anecdote is not just that some of them are false or misleading. Even if true and accurate, anecdotes contribute little to developing a meaningful picture of the situation about which we are concerned. . . . The proportion of cases that results in one or the other error, and the ratio of one kind of error to the other, ought to be of greater interest to serious policy-makers than a handful of anecdotes on either side of the issue."); Marc Galanter et al., How to Improve Civil Justice Policy, 77 JUDICATURE 185, 185 (1994) ("Improving the civil justice system requires thoughtful, objective analysis based on sound empirical data. The lack of systematic, cumulative data in this area makes it possible for far- reaching policy proposals to be advanced on the basis of tendentious anecdotes and numbers. A bias in which solutions to perceived problems are developed by reference to unusual and atypical cases goes unchallenged. Not surprisingly, the effects of the resulting policies are often unanticipated."), quoted in Brian J. Ostom et al., A Step Above Anecdote: A Profile of the Civil Jury in the 1990s, 79 JUDICATURE 233, 234 (1996).
8. See generally Harry Kalven, Jr., The Dignity of the Civil Jury, 50 VA. L. REV. 1055, 1055-56, 1056 n.3 (1964).
9. See id. at 1063.
10. See id. at 1065.
11. See id.
12. See id. at 1066.
13. See id. at 1067.
14. See id. at 1065.
15. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
16. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
17. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
18. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
19. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
20. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
21. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
22. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
23. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
24. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
25. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
26. In general these attacks were no more grounded in empirical research than earlier assaults. Where data were mentioned, their interpretation often was rather careless. For extensive discussions and evaluations of that body of "evidence," see STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM (1995); Marc Galanter, Jury Shadows: Reflections on the Civil Jury and the "Litigation Explosion," in THE AMERICAN CIVIL JURY: FINAL REPORT OF THE 1986 CHIEF JUSTICE EARL WARREN CONFERENCE ON ADVOCACY IN THE UNITED STATES 15 (1987); Robert E. Litan, Introduction, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM (Robert E. Litan ed., 1993); Robert J. MacCoun, Inside the Black Box: What Empirical Research Tells Us About Decisionmaking by Civil Juries, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 137 (Robert E. Litan ed., 1993); Peter H. Schuck, Mapping the Debate on Jury Reform, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 306 (Robert E. Litan ed., 1993); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS AND OUTRAGEOUS DAMAGE AWARDS (1995); Stephen Daniels, The Question of Jury Competence and the Politics of Civil Justice Reform: Symbols, Rhetoric, and Agenda Building, LAW & CONTEMP. PROBS., Autumn 1989, at 269, 292-308; Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 DENV. U. L. REV. 77 (1993): Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093 (1996); Saks, supra note 4; and Neil Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 ARIZ. L. REV. 849 (1998).
27. Neil Vidmar, Pap and Circumstance: What Jury Verdict Statistics Can Tell Us About Jury Behavior and the Tort System, 28 SUFFOLK U. L. REV. 1205, 1224 (1994); see also Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, 23 HOFSTRA L. REV. 763, 768-69 (1995) (asserting unexplainable variation among awards of pain and suffering in wrongful death cases); Kirk B. Johnson et al., A Fault-Based Administrative Alternative for Resolving Medical Malpractice Claims, 42 VAND. L. REV. 1365, 1369-70 (1989) (asserting unjustified variation in awards for comparable injuries caused by medical malpractice and other tortious acts).
28. Neil Vidmar, Pap and Circumstance: What Jury Verdict Statistics Can Tell Us About Jury Behavior and the Tort System, 28 SUFFOLK U. L. REV. 1205, 1224 (1994); see also Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, 23 HOFSTRA L. REV. 763, 768-69 (1995) (asserting unexplainable variation among awards of pain and suffering in wrongful death cases); Kirk B. Johnson et al., A Fault-Based Administrative Alternative for Resolving Medical Malpractice Claims, 42 VAND. L. REV. 1365, 1369-70 (1989) (asserting unjustified variation in awards for comparable injuries caused by medical malpractice and other tortious acts).
29. Neil Vidmar, Pap and Circumstance: What Jury Verdict Statistics Can Tell Us About Jury Behavior and the Tort System, 28 SUFFOLK U. L. REV. 1205, 1224 (1994); see also Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, 23 HOFSTRA L. REV. 763, 768-69 (1995) (asserting unexplainable variation among awards of pain and suffering in wrongful death cases); Kirk B. Johnson et al., A Fault-Based Administrative Alternative for Resolving Medical Malpractice Claims, 42 VAND. L. REV. 1365, 1369-70 (1989) (asserting unjustified variation in awards for comparable injuries caused by medical malpractice and other tortious acts).
30. See Neil Vidmar et al., Jury Awards for Medical Malpractice and Post-Verdict Adjustments of Those Awards, 48 DEPAUL L. REV. 265, 296 (1998).
31. See criticisms reviewed in works at supra note 12.
32. Documentation of the various allegations can be found in the works cited supra note 12.
33. Much of the empirical research literature on compensatory damages is dicussed in our review of the relevant literature, infra, Section II.B.
34. Despite the well known research strategy of Kalven & Zeisel, only a few studies have directly compared the performance of jurors to judges. See Edmund S. Howe & Thomas C. Loftus, Integration of Intention and Outcome Information by Students and Circuit Court Judges: Design Economy and Individual Differences, 22 J. APPLIED SOC. PSYCHOL. 102 (1992); Stephen Landsman & Richard Rakos, A Preliminary Inquiry into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation, 12 BEHAV. SCI. & L. 113 (1994); Gary L. Wells, Naked Statistical Evidence of Liabilty: Is Subjective Probability Enough?, 62 J. PERS. SOC. PSYCHOL. 739 (1992). None of these addressed, however, the question of damages. Another study contains a partial comparison (6 judges in a group composed mostly of lawyers). See Neil Vidmar & Jeffrey J. Rice, Assesments of Non- economic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883 (1993). All of these studies found no differnces in decisionmaking between judges and jurors.
35. Despite the well known research strategy of Kalven & Zeisel, only a few studies have directly compared the performance of jurors to judges. See Edmund S. Howe & Thomas C. Loftus, Integration of Intention and Outcome Information by Students and Circuit Court Judges: Design Economy and Individual Differences, 22 J. APPLIED SOC. PSYCHOL. 102 (1992); Stephen Landsman & Richard Rakos, A Preliminary Inquiry into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation, 12 BEHAV. SCI. & L. 113 (1994); Gary L. Wells, Naked Statistical Evidence of Liabilty: Is Subjective Probability Enough?, 62 J. PERS. SOC. PSYCHOL. 739 (1992). None of these addressed, however, the question of damages. Another study contains a partial comparison (6 judges in a group composed mostly of lawyers). See Neil Vidmar & Jeffrey J. Rice, Assesments of Non- economic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883 (1993). All of these studies found no differnces in decisionmaking between judges and jurors.
36. Despite the well known research strategy of Kalven & Zeisel, only a few studies have directly compared the performance of jurors to judges. See Edmund S. Howe & Thomas C. Loftus, Integration of Intention and Outcome Information by Students and Circuit Court Judges: Design Economy and Individual Differences, 22 J. APPLIED SOC. PSYCHOL. 102 (1992); Stephen Landsman & Richard Rakos, A Preliminary Inquiry into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation, 12 BEHAV. SCI. & L. 113 (1994); Gary L. Wells, Naked Statistical Evidence of Liabilty: Is Subjective Probability Enough?, 62 J. PERS. SOC. PSYCHOL. 739 (1992). None of these addressed, however, the question of damages. Another study contains a partial comparison (6 judges in a group composed mostly of lawyers). See Neil Vidmar & Jeffrey J. Rice, Assesments of Non- economic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883 (1993). All of these studies found no differnces in decisionmaking between judges and jurors.
37. Despite the well known research strategy of Kalven & Zeisel, only a few studies have directly compared the performance of jurors to judges. See Edmund S. Howe & Thomas C. Loftus, Integration of Intention and Outcome Information by Students and Circuit Court Judges: Design Economy and Individual Differences, 22 J. APPLIED SOC. PSYCHOL. 102 (1992); Stephen Landsman & Richard Rakos, A Preliminary Inquiry into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation, 12 BEHAV. SCI. & L. 113 (1994); Gary L. Wells, Naked Statistical Evidence of Liabilty: Is Subjective Probability Enough?, 62 J. PERS. SOC. PSYCHOL. 739 (1992). None of these addressed, however, the question of damages. Another study contains a partial comparison (6 judges in a group composed mostly of lawyers). See Neil Vidmar & Jeffrey J. Rice, Assesments of Non-economic Damage Awards in Medical Negligence: A Comparison of Jurors with Legal Professionals, 78 IOWA L. REV. 883 (1993). All of these studies found no differnces in decisionmaking between judges and jurors.
38. A more detailed explication of the research questions is presented infra Section III.A, and a more detailed discussion of the policy implications of the findings appears infra Section V.D.
39. See generally RESTATEMENT (SECOND) OF TORTS § 905 (1979); 22 AM. JUR. 2D Damages § 28 (1988).
40. See generally RESTATEMENT (SECOND) OF TORTS § 905 (1979); 22 AM. JUR. 2D Damages § 28 (1988).
41. See Ted R. Miller, Willingness to Pay Comes of Age: Will the System Survive?, 83 NW. U. L. REV. 876, 896-900 (1989); W. Kip Viscusi, Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards?, 8 INT'L REV. L. & ECON. 203 (1988).
42. See Ted R. Miller, Willingness to Pay Comes of Age: Will the System Survive?, 83 NW. U. L. REV. 876, 896-900 (1989); W. Kip Viscusi, Pain and Suffering in Product Liability Cases: Systematic Compensation or Capricious Awards?, 8 INT'L REV. L. & ECON. 203 (1988).
43. AM. JUR. 2D Damages § 260 (1988); see also R. Perry Sentell, Jr., The Georgia Jury and Negligence: The View from the Trenches, 28 GA. L. REV. 1, 97-98 (1993) (summarizing a survey of Georgia plaintiffs' and defense lawyers which found that they thought the most troublesome issue for the jury is a lack of guidance on how to assess damages, especially for pain and suffering); Neil Vidmar, Empirical Evidence on the Deep Pockets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases, 43 DUKE L.J. 217 (1993).
44. AM. JUR. 2D Damages § 260 (1988); see also R. Perry Sentell, Jr., The Georgia Jury and Negligence: The View from the Trenches, 28 GA. L. REV. 1, 97-98 (1993) (summarizing a survey of Georgia plaintiffs' and defense lawyers which found that they thought the most troublesome issue for the jury is a lack of guidance on how to assess damages, especially for pain and suffering); Neil Vidmar, Empirical Evidence on the Deep Pockets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases, 43 DUKE L.J. 217 (1993).
45. AM. JUR. 2D Damages § 260 (1988); see also R. Perry Sentell, Jr., The Georgia Jury and Negligence: The View from the Trenches, 28 GA. L. REV. 1, 97-98 (1993) (summarizing a survey of Georgia plaintiffs' and defense lawyers which found that they thought the most troublesome issue for the jury is a lack of guidance on how to assess damages, especially for pain and suffering); Neil Vidmar, Empirical Evidence on the Deep Pockets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases, 43 DUKE L.J. 217 (1993).
46. RESTATEMENT (SECOND) OF TORTS § 912 cmt. b (1979).
47. See generally David W. Leebron, Final Moments: Damages for Pain and Suffering Prior to Death, 64 N.Y.U. L. REV. 256, 265 (1989).
48. Nevertheless, many trial participants and commentators wish for less variability and more predictability than the law thus far has been able to design.
49. See AUDREY CHIN & MARK A. PETERSON, DEEP POCKETS, EMPTY POCKETS: WHO WINS IN COOK COUNTY JURY TRIALS (1985); MARK A. PETERSON, COMPENSATION FOR INJURIES: CIVIL JURY VERDICTS IN COOK COUNTY (1984); David Baldus et al., Improving Judicial Oversight of Jury Damage Assessments: A Proposal for the Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive Danages, 80 IOWA L. REV. 1109 (1995); Randall Bovbjerg et al., Juries and Justice: Are Malpractice and Other Injuries Created Equal?, LAW & CONTEMP. PROBS., Winter 1991, at 5 [hereinafter Bovbjerg et al., Juries and Justice]; Randall R. Bovbjerg et al., Valuing Life and Limb in Tort: Scheduling "Pain and Suffering," 83 NW. U. L. REV. 908 (1989) [hereinafter Bovbjerg et al., Valuing Life and Limb]; Frank A. Sloan & Chee Ruey Hsieh, Variability in Medical Malpratice Payments: Is the Compensation Fair?, 24 LAW & SOC'Y REV. 997 (1990); Viscusi, supra note 21.
50. See AUDREY CHIN & MARK A. PETERSON, DEEP POCKETS, EMPTY POCKETS: WHO WINS IN COOK COUNTY JURY TRIALS (1985); MARK A. PETERSON, COMPENSATION FOR INJURIES: CIVIL JURY VERDICTS IN COOK COUNTY (1984); David Baldus et al., Improving Judicial Oversight of Jury Damage Assessments: A Proposal for the Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive Danages, 80 IOWA L. REV. 1109 (1995); Randall Bovbjerg et al., Juries and Justice: Are Malpractice and Other Injuries Created Equal?, LAW & CONTEMP. PROBS., Winter 1991, at 5 [hereinafter Bovbjerg et al., Juries and Justice]; Randall R. Bovbjerg et al., Valuing Life and Limb in Tort: Scheduling "Pain and Suffering," 83 NW. U. L. REV. 908 (1989) [hereinafter Bovbjerg et al., Valuing Life and Limb]; Frank A. Sloan & Chee Ruey Hsieh, Variability in Medical Malpratice Payments: Is the Compensation Fair?, 24 LAW & SOC'Y REV. 997 (1990); Viscusi, supra note 21.
51. See AUDREY CHIN & MARK A. PETERSON, DEEP POCKETS, EMPTY POCKETS: WHO WINS IN COOK COUNTY JURY TRIALS (1985); MARK A. PETERSON, COMPENSATION FOR INJURIES: CIVIL JURY VERDICTS IN COOK COUNTY (1984); David Baldus et al., Improving Judicial Oversight of Jury Damage Assessments: A Proposal for the Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive Danages, 80 IOWA L. REV. 1109 (1995); Randall Bovbjerg et al., Juries and Justice: Are Malpractice and Other Injuries Created Equal?, LAW & CONTEMP. PROBS., Winter 1991, at 5 [hereinafter Bovbjerg et al., Juries and Justice]; Randall R. Bovbjerg et al., Valuing Life and Limb in Tort: Scheduling "Pain and Suffering," 83 NW. U. L. REV. 908 (1989) [hereinafter Bovbjerg et al., Valuing Life and Limb]; Frank A. Sloan & Chee Ruey Hsieh, Variability in Medical Malpratice Payments: Is the Compensation Fair?, 24 LAW & SOC'Y REV. 997 (1990); Viscusi, supra note 21.
52. See AUDREY CHIN & MARK A. PETERSON, DEEP POCKETS, EMPTY POCKETS: WHO WINS IN COOK COUNTY JURY TRIALS (1985); MARK A. PETERSON, COMPENSATION FOR INJURIES: CIVIL JURY VERDICTS IN COOK COUNTY (1984); David Baldus et al., Improving Judicial Oversight of Jury Damage Assessments: A Proposal for the Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive Danages, 80 IOWA L. REV. 1109 (1995); Randall Bovbjerg et al., Juries and Justice: Are Malpractice and Other Injuries Created Equal?, LAW & CONTEMP. PROBS., Winter 1991, at 5 [hereinafter Bovbjerg et al., Juries and Justice]; Randall R. Bovbjerg et al., Valuing Life and Limb in Tort: Scheduling "Pain and Suffering," 83 NW. U. L. REV. 908 (1989) [hereinafter Bovbjerg et al., Valuing Life and Limb]; Frank A. Sloan & Chee Ruey Hsieh, Variability in Medical Malpratice Payments: Is the Compensation Fair?, 24 LAW & SOC'Y REV. 997 (1990); Viscusi, supra note 21.
53. See AUDREY CHIN & MARK A. PETERSON, DEEP POCKETS, EMPTY POCKETS: WHO WINS IN COOK COUNTY JURY TRIALS (1985); MARK A. PETERSON, COMPENSATION FOR INJURIES: CIVIL JURY VERDICTS IN COOK COUNTY (1984); David Baldus et al., Improving Judicial Oversight of Jury Damage Assessments: A Proposal for the Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive Danages, 80 IOWA L. REV. 1109 (1995); Randall Bovbjerg et al., Juries and Justice: Are Malpractice and Other Injuries Created Equal?, LAW & CONTEMP. PROBS., Winter 1991, at 5 [hereinafter Bovbjerg et al., Juries and Justice]; Randall R. Bovbjerg et al., Valuing Life and Limb in Tort: Scheduling "Pain and Suffering," 83 NW. U. L. REV. 908 (1989) [hereinafter Bovbjerg et al., Valuing Life and Limb]; Frank A. Sloan & Chee Ruey Hsieh, Variability in Medical Malpratice Payments: Is the Compensation Fair?, 24 LAW & SOC'Y REV. 997 (1990); Viscusi, supra note 21.
54. See AUDREY CHIN & MARK A. PETERSON, DEEP POCKETS, EMPTY POCKETS: WHO WINS IN COOK COUNTY JURY TRIALS (1985); MARK A. PETERSON, COMPENSATION FOR INJURIES: CIVIL JURY VERDICTS IN COOK COUNTY (1984); David Baldus et al., Improving Judicial Oversight of Jury Damage Assessments: A Proposal for the Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive Danages, 80 IOWA L. REV. 1109 (1995); Randall Bovbjerg et al., Juries and Justice: Are Malpractice and Other Injuries Created Equal?, LAW & CONTEMP. PROBS., Winter 1991, at 5 [hereinafter Bovbjerg et al., Juries and Justice]; Randall R. Bovbjerg et al., Valuing Life and Limb in Tort: Scheduling "Pain and Suffering," 83 NW. U. L. REV. 908 (1989) [hereinafter Bovbjerg et al., Valuing Life and Limb]; Frank A. Sloan & Chee Ruey Hsieh, Variability in Medical Malpratice Payments: Is the Compensation Fair?, 24 LAW & SOC'Y REV. 997 (1990); Viscusi, supra note 21.
55. See AUDREY CHIN & MARK A. PETERSON, DEEP POCKETS, EMPTY POCKETS: WHO WINS IN COOK COUNTY JURY TRIALS (1985); MARK A. PETERSON, COMPENSATION FOR INJURIES: CIVIL JURY VERDICTS IN COOK COUNTY (1984); David Baldus et al., Improving Judicial Oversight of Jury Damage Assessments: A Proposal for the Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive Danages, 80 IOWA L. REV. 1109 (1995); Randall Bovbjerg et al., Juries and Justice: Are Malpractice and Other Injuries Created Equal?, LAW & CONTEMP. PROBS., Winter 1991, at 5 [hereinafter Bovbjerg et al., Juries and Justice]; Randall R. Bovbjerg et al., Valuing Life and Limb in Tort: Scheduling "Pain and Suffering," 83 NW. U. L. REV. 908 (1989) [hereinafter Bovbjerg et al., Valuing Life and Limb]; Frank A. Sloan & Chee Ruey Hsieh, Variability in Medical Malpratice Payments: Is the Compensation Fair?, 24 LAW & SOC'Y REV. 997 (1990); Viscusi, supra note 21.
56. See Jane Goodman et al., Runaway Verdicts or Reasoned Determinations: Mock Juror Strategies in Awarding Damages, 29 JURIMETRICS 285, 289 (1989); Valerie Hans & M. David Ermann, Responses to Corporate Versus Individual Wrongdoing, 13 LAW & HUM. BEHAV. 151 (1989); Michael J. Saks et al., Reducing Variability in Civil Jury Awards, 21 LAW & HUM. BEHAV. 243 (1997); Vidmar & Rice, supra note 18; Roselle L. Wissler et al., Explaining "Pain and Suffering" Awards: the Role of Injury Characteristics and Fault Attributions, 21 LAW & HUM. BEHAV. 181 (1997). But see Corinne Cather et al., Plaintiff Injury and Defendant Reprehensibility: Implications for Compensatory and Punitive Damage Awards, 20 LAW & HUM. BEHAV. 189 (1996) (finding no difference in awards as a function of injury severity).
57. See Jane Goodman et al., Runaway Verdicts or Reasoned Determinations: Mock Juror Strategies in Awarding Damages, 29 JURIMETRICS 285, 289 (1989); Valerie Hans & M. David Ermann, Responses to Corporate Versus Individual Wrongdoing, 13 LAW & HUM. BEHAV. 151 (1989); Michael J. Saks et al., Reducing Variability in Civil Jury Awards, 21 LAW & HUM. BEHAV. 243 (1997); Vidmar & Rice, supra note 18; Roselle L. Wissler et al., Explaining "Pain and Suffering" Awards: the Role of Injury Characteristics and Fault Attributions, 21 LAW & HUM. BEHAV. 181 (1997). But see Corinne Cather et al., Plaintiff Injury and Defendant Reprehensibility: Implications for Compensatory and Punitive Damage Awards, 20 LAW & HUM. BEHAV. 189 (1996) (finding no difference in awards as a function of injury severity).
58. See Jane Goodman et al., Runaway Verdicts or Reasoned Determinations: Mock Juror Strategies in Awarding Damages, 29 JURIMETRICS 285, 289 (1989); Valerie Hans & M. David Ermann, Responses to Corporate Versus Individual Wrongdoing, 13 LAW & HUM. BEHAV. 151 (1989); Michael J. Saks et al., Reducing Variability in Civil Jury Awards, 21 LAW & HUM. BEHAV. 243 (1997); Vidmar & Rice, supra note 18; Roselle L. Wissler et al., Explaining "Pain and Suffering" Awards: the Role of Injury Characteristics and Fault Attributions, 21 LAW & HUM. BEHAV. 181 (1997). But see Corinne Cather et al., Plaintiff Injury and Defendant Reprehensibility: Implications for Compensatory and Punitive Damage Awards, 20 LAW & HUM. BEHAV. 189 (1996) (finding no difference in awards as a function of injury severity).
59. See Jane Goodman et al., Runaway Verdicts or Reasoned Determinations: Mock Juror Strategies in Awarding Damages, 29 JURIMETRICS 285, 289 (1989); Valerie Hans & M. David Ermann, Responses to Corporate Versus Individual Wrongdoing, 13 LAW & HUM. BEHAV. 151 (1989); Michael J. Saks et al., Reducing Variability in Civil Jury Awards, 21 LAW & HUM. BEHAV. 243 (1997); Vidmar & Rice, supra note 18; Roselle L. Wissler et al., Explaining "Pain and Suffering" Awards: the Role of Injury Characteristics and Fault Attributions, 21 LAW & HUM. BEHAV. 181 (1997). But see Corinne Cather et al., Plaintiff Injury and Defendant Reprehensibility: Implications for Compensatory and Punitive Damage Awards, 20 LAW & HUM. BEHAV. 189 (1996) (finding no difference in awards as a function of injury severity).
60. See Jane Goodman et al., Runaway Verdicts or Reasoned Determinations: Mock Juror Strategies in Awarding Damages, 29 JURIMETRICS 285, 289 (1989); Valerie Hans & M. David Ermann, Responses to Corporate Versus Individual Wrongdoing, 13 LAW & HUM. BEHAV. 151 (1989); Michael J. Saks et al., Reducing Variability in Civil Jury Awards, 21 LAW & HUM. BEHAV. 243 (1997); Vidmar & Rice, supra note 18; Roselle L. Wissler et al., Explaining "Pain and Suffering" Awards: the Role of Injury Characteristics and Fault Attributions, 21 LAW & HUM. BEHAV. 181 (1997). But see Corinne Cather et al., Plaintiff Injury and Defendant Reprehensibility: Implications for Compensatory and Punitive Damage Awards, 20 LAW & HUM. BEHAV. 189 (1996) (finding no difference in awards as a function of injury severity).
61. See Jane Goodman et al., Runaway Verdicts or Reasoned Determinations: Mock Juror Strategies in Awarding Damages, 29 JURIMETRICS 285, 289 (1989); Valerie Hans & M. David Ermann, Responses to Corporate Versus Individual Wrongdoing, 13 LAW & HUM. BEHAV. 151 (1989); Michael J. Saks et al., Reducing Variability in Civil Jury Awards, 21 LAW & HUM. BEHAV. 243 (1997); Vidmar & Rice, supra note 18; Roselle L. Wissler et al., Explaining "Pain and Suffering" Awards: the Role of Injury Characteristics and Fault Attributions, 21 LAW & HUM. BEHAV. 181 (1997). But see Corinne Cather et al., Plaintiff Injury and Defendant Reprehensibility: Implications for Compensatory and Punitive Damage Awards, 20 LAW & HUM. BEHAV. 189 (1996) (finding no difference in awards as a function of injury severity).
62. See CHIN & PETERSON, supra note 26; Sloan & Hsieh, supra note 26; Viscusi, supra note 21.
63. In simulation studies, for instance, mock jurors are presented with identical case facts, yet the jurors produce an array of different awards, not one single award. See sources cited supra note 27. Of course, a complete absence of variability among a group of decisionmakers seldom occurs. For a glimpse of the variability of other decisionmakers, see infra Table 5. Accordingly, commentators who lament "horizontal inequity" cannot be suggesting that its existence demonstrates a defect in the system of damages. What they really ought to be arguing is that the amount of horizontal variability is greater than they believe it should be.
64. See ALFRED F. CONARD ET AL., AUTOMOBILE ACCIDENT COSTS AND PAYMENTS: STUDIES IN THE ECONOMICS OF INJURY REPARATION at 248-52 (1964); ELIZABETH M. KING & JAMES P. SMITH, ECONOMIC LOSS AND COMPENSATION IN AVIATION ACCIDENTS at 74-76 (1988).
65. See ALFRED F. CONARD ET AL., AUTOMOBILE ACCIDENT COSTS AND PAYMENTS: STUDIES IN THE ECONOMICS OF INJURY REPARATION at 248-52 (1964); ELIZABETH M. KING & JAMES P. SMITH, ECONOMIC LOSS AND COMPENSATION IN AVIATION ACCIDENTS at 74-76 (1988).
66. See CHIN & PETERSON, supra note 26; PETERSON, supra note 26; Baldus et al., supra note 26; Bovbjerg et al., Juries and Justice, supra note 26; Bovbjerg et al., Valuing Life and Limb, supra note 26; James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751 (1985); Viscusi, supra note 21; David C. Baldus et al., Children's Models for Compensatory Damages (1992) (unpublished manuscript, on file with the authors).
67. See CHIN & PETERSON, supra note 26; PETERSON, supra note 26; Baldus et al., supra note 26; Bovbjerg et al., Juries and Justice, supra note 26; Bovbjerg et al., Valuing Life and Limb, supra note 26; James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751 (1985); Viscusi, supra note 21; David C. Baldus et al., Children's Models for Compensatory Damages (1992) (unpublished manuscript, on file with the authors).
68. See CHIN & PETERSON, supra note 26; PETERSON, supra note 26; Baldus et al., supra note 26; Bovbjerg et al., Juries and Justice, supra note 26; Bovbjerg et al., Valuing Life and Limb, supra note 26; James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751 (1985); Viscusi, supra note 21; David C. Baldus et al., Children's Models for Compensatory Damages (1992) (unpublished manuscript, on file with the authors).
69. See CHIN & PETERSON, supra note 26; PETERSON, supra note 26; Baldus et al., supra note 26; Bovbjerg et al., Juries and Justice, supra note 26; Bovbjerg et al., Valuing Life and Limb, supra note 26; James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751 (1985); Viscusi, supra note 21; David C. Baldus et al., Children's Models for Compensatory Damages (1992) (unpublished manuscript, on file with the authors).
70. See CHIN & PETERSON, supra note 26; PETERSON, supra note 26; Baldus et al., supra note 26; Bovbjerg et al., Juries and Justice, supra note 26; Bovbjerg et al., Valuing Life and Limb, supra note 26; James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751 (1985); Viscusi, supra note 21; David C. Baldus et al., Children's Models for Compensatory Damages (1992) (unpublished manuscript, on file with the authors).
71. See CHIN & PETERSON, supra note 26; PETERSON, supra note 26; Baldus et al., supra note 26; Bovbjerg et al., Juries and Justice, supra note 26; Bovbjerg et al., Valuing Life and Limb, supra note 26; James K. Hammitt et al., Tort Standards and Jury Decisions, 14 J. LEGAL STUD. 751 (1985); Viscusi, supra note 21; David C. Baldus et al., Children's Models for Compensatory Damages (1992) (unpublished manuscript, on file with the authors).
72. Simulation studies, however, have added important qualifications and refinements to conclusions about the way in which these factors affect awards. Most importantly, they have found that differences in compensatory awards previously attributed to a "deep pocket" effect are not the result of differences in the defendants' wealth. See Robert J. MacCoun, Differential Treatment of Corporate Defendants by Juries: An Examination of the "Deep-Pockets" Hypothesis, 30 LAW & SOC'Y REV. 121 (1996); Neil Vidmar, et al., Damage Awards and Jurors' Responsibility Ascriptions in Medical Versus Automobile Negligence Cases, 12 BEHAV. SCI. & L. 149 (1994); Vidmar, supra note 22; William D. Woody et al., Compensating Plaintiffs and Punishing Defendants: Is Bifurcation Necessary? (1998) (unpublished manuscript, on file with the authors) (presented at the biennial meeting of the American Psychology-Law Society, Redondo Beach, Cal., 1998). Instead, the differences in awards are due to differences in perceptions of the defendants' intentionality, responsibility, recklessness, or competence to avoid the injury. See Valerie P. Hans, The Jury's Response to Business and Corporate Wrongdoing, 52 LAW & CONTEMP. PROBS., Autumn 1989, at 177; Hans & Ermann, supra note 27; see also Goodman, et al., supra note 27; MacCoun, supra note 12; Vidmar et al., supra note 14.
73. Simulation studies, however, have added important qualifications and refinements to conclusions about the way in which these factors affect awards. Most importantly, they have found that differences in compensatory awards previously attributed to a "deep pocket" effect are not the result of differences in the defendants' wealth. See Robert J. MacCoun, Differential Treatment of Corporate Defendants by Juries: An Examination of the "Deep-Pockets" Hypothesis, 30 LAW & SOC'Y REV. 121 (1996); Neil Vidmar, et al., Damage Awards and Jurors' Responsibility Ascriptions in Medical Versus Automobile Negligence Cases, 12 BEHAV. SCI. & L. 149 (1994); Vidmar, supra note 22; William D. Woody et al., Compensating Plaintiffs and Punishing Defendants: Is Bifurcation Necessary? (1998) (unpublished manuscript, on file with the authors) (presented at the biennial meeting of the American Psychology-Law Society, Redondo Beach, Cal., 1998). Instead, the differences in awards are due to differences in perceptions of the defendants' intentionality, responsibility, recklessness, or competence to avoid the injury. See Valerie P. Hans, The Jury's Response to Business and Corporate Wrongdoing, 52 LAW & CONTEMP. PROBS., Autumn 1989, at 177; Hans & Ermann, supra note 27; see also Goodman, et al., supra note 27; MacCoun, supra note 12; Vidmar et al., supra note 14.
74. Simulation studies, however, have added important qualifications and refinements to conclusions about the way in which these factors affect awards. Most importantly, they have found that differences in compensatory awards previously attributed to a "deep pocket" effect are not the result of differences in the defendants' wealth. See Robert J. MacCoun, Differential Treatment of Corporate Defendants by Juries: An Examination of the "Deep-Pockets" Hypothesis, 30 LAW & SOC'Y REV. 121 (1996); Neil Vidmar, et al., Damage Awards and Jurors' Responsibility Ascriptions in Medical Versus Automobile Negligence Cases, 12 BEHAV. SCI. & L. 149 (1994); Vidmar, supra note 22; William D. Woody et al., Compensating Plaintiffs and Punishing Defendants: Is Bifurcation Necessary? (1998) (unpublished manuscript, on file with the authors) (presented at the biennial meeting of the American Psychology-Law Society, Redondo Beach, Cal., 1998). Instead, the differences in awards are due to differences in perceptions of the defendants' intentionality, responsibility, recklessness, or competence to avoid the injury. See Valerie P. Hans, The Jury's Response to Business and Corporate Wrongdoing, 52 LAW & CONTEMP. PROBS., Autumn 1989, at 177; Hans & Ermann, supra note 27; see also Goodman, et al., supra note 27; MacCoun, supra note 12; Vidmar et al., supra note 14.
75. Simulation studies, however, have added important qualifications and refinements to conclusions about the way in which these factors affect awards. Most importantly, they have found that differences in compensatory awards previously attributed to a "deep pocket" effect are not the result of differences in the defendants' wealth. See Robert J. MacCoun, Differential Treatment of Corporate Defendants by Juries: An Examination of the "Deep-Pockets" Hypothesis, 30 LAW & SOC'Y REV. 121 (1996); Neil Vidmar, et al., Damage Awards and Jurors' Responsibility Ascriptions in Medical Versus Automobile Negligence Cases, 12 BEHAV. SCI. & L. 149 (1994); Vidmar, supra note 22; William D. Woody et al., Compensating Plaintiffs and Punishing Defendants: Is Bifurcation Necessary? (1998) (unpublished manuscript, on file with the authors) (presented at the biennial meeting of the American Psychology-Law Society, Redondo Beach, Cal., 1998). Instead, the differences in awards are due to differences in perceptions of the defendants' intentionality, responsibility, recklessness, or competence to avoid the injury. See Valerie P. Hans, The Jury's Response to Business and Corporate Wrongdoing, 52 LAW & CONTEMP. PROBS., Autumn 1989, at 177; Hans & Ermann, supra note 27; see also Goodman, et al., supra note 27; MacCoun, supra note 12; Vidmar et al., supra note 14.
76. Simulation studies, however, have added important qualifications and refinements to conclusions about the way in which these factors affect awards. Most importantly, they have found that differences in compensatory awards previously attributed to a "deep pocket" effect are not the result of differences in the defendants' wealth. See Robert J. MacCoun, Differential Treatment of Corporate Defendants by Juries: An Examination of the "Deep-Pockets" Hypothesis, 30 LAW & SOC'Y REV. 121 (1996); Neil Vidmar, et al., Damage Awards and Jurors' Responsibility Ascriptions in Medical Versus Automobile Negligence Cases, 12 BEHAV. SCI. & L. 149 (1994); Vidmar, supra note 22; William D. Woody et al., Compensating Plaintiffs and Punishing Defendants: Is Bifurcation Necessary? (1998) (unpublished manuscript, on file with the authors) (presented at the biennial meeting of the American Psychology-Law Society, Redondo Beach, Cal., 1998). Instead, the differences in awards are due to differences in perceptions of the defendants' intentionality, responsibility, recklessness, or competence to avoid the injury. See Valerie P. Hans, The Jury's Response to Business and Corporate Wrongdoing, 52 LAW & CONTEMP. PROBS., Autumn 1989, at 177; Hans & Ermann, supra note 27; see also Goodman, et al., supra note 27; MacCoun, supra note 12; Vidmar et al., supra note 14.
77. See PATRICIA M. DANZON, MEDICAL MALPRACTICE: THEORY, EVIDENCE, AND PUBLIC POLICY 74-75 (1985).
78. See DANIELS & MARTIN, supra note 12.
79. See CHIN & PETERSON, supra note 26; PETERSON, supra note 26; Bovbjerg et al., Juries and Justice, supra note 26; Sloan & Hsieh, supra note 26.
80. See Bovbjerg et al., Valuing Life and Limb, supra note 26; Viscusi, supra note 21.
81. See Neil Vidmar, Making Inference About Jury Behavior from Jury Verdict Statistics: Cautions About the Lorelei's Lied, 18 LAW & HUM. BEHAV. 599 (1994); Vidmar et al., supra note 14.
82. Some researchers use the Severity of Injury Scale developed by the National Association of Insurance Commisioners, see NAIC MALPRACTICE CLAIMS: FINAL COMPILATION (1980), which ranges from one (emotional injury only) to nine (death). See DANZON, supra note 33; Bovbjerg et al., Juries and Justice, supra note 26.
83. Some researchers use the Severity of Injury Scale developed by the National Association of Insurance Commisioners, see NAIC MALPRACTICE CLAIMS: FINAL COMPILATION (1980), which ranges from one (emotional injury only) to nine (death). See DANZON, supra note 33; Bovbjerg et al., Juries and Justice, supra note 26.
84. See Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, in REFORMING THE CIVIL JUSTICE SYSTEM 339, 354 (Larry Kramer ed., 1996); Gary T. Schwartz, Proposals for Reforming Pain and Suffering Awards, in REFORMING THE CIVIL JUSTICE SYSTEM 416, 419 (Larry Kramer ed., 1996)
85. See Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, in REFORMING THE CIVIL JUSTICE SYSTEM 339, 354 (Larry Kramer ed., 1996); Gary T. Schwartz, Proposals for Reforming Pain and Suffering Awards, in REFORMING THE CIVIL JUSTICE SYSTEM 416, 419 (Larry Kramer ed., 1996)
86. See Allen J. Hart et al., Multidimensional Perceptions of Illness and Injury, 2 CURRENT RES. SOC. PSYCHOL. 30 (Sept. 11, 1997) 〈http://www.uiowa.edu/~grpproc/crisp/crisp.html〉; Andrew J. Slain et al., Multidimensional Perceptions of Inquiry: Implication for the "Adversary Culture" (1998) (unpublished manuscript, on file with the authors) (presented at the Biennial Meeting of the American Psychology-Law Society, Redondo Beach, Cal., 1998).
87. See Allen J. Hart et al., Multidimensional Perceptions of Illness and Injury, 2 CURRENT RES. SOC. PSYCHOL. 30 (Sept. 11, 1997) 〈http://www.uiowa.edu/~grpproc/crisp/crisp.html〉; Andrew J. Slain et al., Multidimensional Perceptions of Inquiry: Implication for the "Adversary Culture" (1998) (unpublished manuscript, on file with the authors) (presented at the Biennial Meeting of the American Psychology-Law Society, Redondo Beach, Cal., 1998).
88. See Wissler et al., supra note 27, at 195-202 (Experiment 2).
89. Jurors evaluating general damages may and should take into account such things as pre-injury health, post-injury recovery, lifestyle, occupation, and social circumstances. See RESTATEMENT (SECOND) OF TORTS § 905 cmt. i (1979).
90. See RESTATEMENT (SECOND) OF TORTS § 905 (1979).
91. See HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY (1966).
92. See Kevin M. Clermont & Theodore Eisenberg, Trial by Jury or Judge: Transcending Empiricism, 77 CORNELL L. REV. 1124 (1992).
93. See Vidmar & Rice, supra note 18.
94. See Vidmar, supra note 12, at 229-234.
95. See Vidmar & Rice, supra note 18.
96. See Goodman et al., supra note 27; see also Jane Goodman et al., Money, Sex, and Death: Gender Bias in Wrongful Death Damage Awards, 25 L. & SOC'Y REV. 263, 264 (1991) ("Little is known about factors that influence jury damage awards in civil case.").
97. MacCoun, supra note 12, at 137 (emphasis in original).
98. See Cass R. Sunstein et al., Assessing Punitive Damages (With Notes on Cognition and Valuation in Law), 107 YALE L.J. 2071 (1998); Daniel Kahneman et al., Shared Outrage and Erratic Awards: The Psychology of Punitive Damages, 16 J. RISK & UNCERTAINTY 49 (1998) (a somewhat more technical presentation of the same study as Sunstein et al.); Wissler et al., supra note 27.
99. See Cass R. Sunstein et al., Assessing Punitive Damages (With Notes on Cognition and Valuation in Law), 107 YALE L.J. 2071 (1998); Daniel Kahneman et al., Shared Outrage and Erratic Awards: The Psychology of Punitive Damages, 16 J. RISK & UNCERTAINTY 49 (1998) (a somewhat more technical presentation of the same study as Sunstein et al.); Wissler et al., supra note 27.
100. See Cass R. Sunstein et al., Assessing Punitive Damages (With Notes on Cognition and Valuation in Law), 107 YALE L.J. 2071 (1998); Daniel Kahneman et al., Shared Outrage and Erratic Awards: The Psychology of Punitive Damages, 16 J. RISK & UNCERTAINTY 49 (1998) (a somewhat more technical presentation of the same study as Sunstein et al.); Wissler et al., supra note 27.
101. See PETER H. ROSSI, & STEVEN L. NOCK, MEASURING SOCIAL JUDGMENTS: THE FACTORIAL SURVEY APPROACH (1982).
102. See DANIELS & MARTIN, supra note 12.
103. See generally DANZON, supra note 33.
104. See generally ROSSI & NOCK, supra note 52.
105. The cases were selected from those identified in a study by Baldus et al., supra note 26.
106. See Appendix A for several examples of case summaries.
107. See RESTATEMENT (SECOND) OF TORTS §§ 905, 912 cmt. b (1979); 22 AM. JUR. 2D Damages §§ 240-241, 252-256, 269, 271, 275, 293-387 (1988); MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS (1993); JEROME MIRZA, ILLINOIS TORT LAW & PRACTICE (2d ed. 1989); 36 NY JUR. 2D Damages §§ 56-66, 96-99 (1984); MICHAEL J. POLELLE & BRUCE L. OTTLEY, ILLINOIS TORT LAW (1985); Robert W. Phillpott, Jr., ed., Quantum Study, 42 LOY. L. REV. 817 (1997); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Arms and Hands, 12 A.L.R. 4th 96 (1981); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Legs and Feet, 13 A.L.R. 4th 212 (1981).
108. See RESTATEMENT (SECOND) OF TORTS §§ 905, 912 cmt. b (1979); 22 AM. JUR. 2D Damages §§ 240-241, 252-256, 269, 271, 275, 293-387 (1988); MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS (1993); JEROME MIRZA, ILLINOIS TORT LAW & PRACTICE (2d ed. 1989); 36 NY JUR. 2D Damages §§ 56-66, 96-99 (1984); MICHAEL J. POLELLE & BRUCE L. OTTLEY, ILLINOIS TORT LAW (1985); Robert W. Phillpott, Jr., ed., Quantum Study, 42 LOY. L. REV. 817 (1997); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Arms and Hands, 12 A.L.R. 4th 96 (1981); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Legs and Feet, 13 A.L.R. 4th 212 (1981).
109. See RESTATEMENT (SECOND) OF TORTS §§ 905, 912 cmt. b (1979); 22 AM. JUR. 2D Damages §§ 240-241, 252-256, 269, 271, 275, 293-387 (1988); MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS (1993); JEROME MIRZA, ILLINOIS TORT LAW & PRACTICE (2d ed. 1989); 36 NY JUR. 2D Damages §§ 56-66, 96-99 (1984); MICHAEL J. POLELLE & BRUCE L. OTTLEY, ILLINOIS TORT LAW (1985); Robert W. Phillpott, Jr., ed., Quantum Study, 42 LOY. L. REV. 817 (1997); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Arms and Hands, 12 A.L.R. 4th 96 (1981); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Legs and Feet, 13 A.L.R. 4th 212 (1981).
110. See RESTATEMENT (SECOND) OF TORTS §§ 905, 912 cmt. b (1979); 22 AM. JUR. 2D Damages §§ 240-241, 252-256, 269, 271, 275, 293-387 (1988); MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS (1993); JEROME MIRZA, ILLINOIS TORT LAW & PRACTICE (2d ed. 1989); 36 NY JUR. 2D Damages §§ 56-66, 96-99 (1984); MICHAEL J. POLELLE & BRUCE L. OTTLEY, ILLINOIS TORT LAW (1985); Robert W. Phillpott, Jr., ed., Quantum Study, 42 LOY. L. REV. 817 (1997); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Arms and Hands, 12 A.L.R. 4th 96 (1981); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Legs and Feet, 13 A.L.R. 4th 212 (1981).
111. See RESTATEMENT (SECOND) OF TORTS §§ 905, 912 cmt. b (1979); 22 AM. JUR. 2D Damages §§ 240-241, 252-256, 269, 271, 275, 293-387 (1988); MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS (1993); JEROME MIRZA, ILLINOIS TORT LAW & PRACTICE (2d ed. 1989); 36 NY JUR. 2D Damages §§ 56-66, 96-99 (1984); MICHAEL J. POLELLE & BRUCE L. OTTLEY, ILLINOIS TORT LAW (1985); Robert W. Phillpott, Jr., ed., Quantum Study, 42 LOY. L. REV. 817 (1997); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Arms and Hands, 12 A.L.R. 4th 96 (1981); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Legs and Feet, 13 A.L.R. 4th 212 (1981).
112. See RESTATEMENT (SECOND) OF TORTS §§ 905, 912 cmt. b (1979); 22 AM. JUR. 2D Damages §§ 240-241, 252-256, 269, 271, 275, 293-387 (1988); MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS (1993); JEROME MIRZA, ILLINOIS TORT LAW & PRACTICE (2d ed. 1989); 36 NY JUR. 2D Damages §§ 56-66, 96-99 (1984); MICHAEL J. POLELLE & BRUCE L. OTTLEY, ILLINOIS TORT LAW (1985); Robert W. Phillpott, Jr., ed., Quantum Study, 42 LOY. L. REV. 817 (1997); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Arms and Hands, 12 A.L.R. 4th 96 (1981); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Legs and Feet, 13 A.L.R. 4th 212 (1981).
113. See RESTATEMENT (SECOND) OF TORTS §§ 905, 912 cmt. b (1979); 22 AM. JUR. 2D Damages §§ 240-241, 252-256, 269, 271, 275, 293-387 (1988); MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS (1993); JEROME MIRZA, ILLINOIS TORT LAW & PRACTICE (2d ed. 1989); 36 NY JUR. 2D Damages §§ 56-66, 96-99 (1984); MICHAEL J. POLELLE & BRUCE L. OTTLEY, ILLINOIS TORT LAW (1985); Robert W. Phillpott, Jr., ed., Quantum Study, 42 LOY. L. REV. 817 (1997); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Arms and Hands, 12 A.L.R. 4th 96 (1981); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Legs and Feet, 13 A.L.R. 4th 212 (1981).
114. See RESTATEMENT (SECOND) OF TORTS §§ 905, 912 cmt. b (1979); 22 AM. JUR. 2D Damages §§ 240-241, 252-256, 269, 271, 275, 293-387 (1988); MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS (1993); JEROME MIRZA, ILLINOIS TORT LAW & PRACTICE (2d ed. 1989); 36 NY JUR. 2D Damages §§ 56-66, 96-99 (1984); MICHAEL J. POLELLE & BRUCE L. OTTLEY, ILLINOIS TORT LAW (1985); Robert W. Phillpott, Jr., ed., Quantum Study, 42 LOY. L. REV. 817 (1997); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Arms and Hands, 12 A.L.R. 4th 96 (1981); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Legs and Feet, 13 A.L.R. 4th 212 (1981).
115. See RESTATEMENT (SECOND) OF TORTS §§ 905, 912 cmt. b (1979); 22 AM. JUR. 2D Damages §§ 240-241, 252-256, 269, 271, 275, 293-387 (1988); MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS (1993); JEROME MIRZA, ILLINOIS TORT LAW & PRACTICE (2d ed. 1989); 36 NY JUR. 2D Damages §§ 56-66, 96-99 (1984); MICHAEL J. POLELLE & BRUCE L. OTTLEY, ILLINOIS TORT LAW (1985); Robert W. Phillpott, Jr., ed., Quantum Study, 42 LOY. L. REV. 817 (1997); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Arms and Hands, 12 A.L.R. 4th 96 (1981); Carl T. Drechsler, Annotation, Excessiveness or Adequacy of Damages Awarded for Injuries to Legs and Feet, 13 A.L.R. 4th 212 (1981).
116. See ALBERT J. MILLUS & WILLARD J. GENTILE, WORKERS' COMPENSATION LAW AND INSURANCE 93-194 (2d ed. 1980); JEFFREY V. NACKLEY, PRIMER ON WORKERS' COMPENSATION (2d ed. 1989).
117. See ALBERT J. MILLUS & WILLARD J. GENTILE, WORKERS' COMPENSATION LAW AND INSURANCE 93-194 (2d ed. 1980); JEFFREY V. NACKLEY, PRIMER ON WORKERS' COMPENSATION (2d ed. 1989).
118. See PETER CANE, ATIYAH'S ACCIDENTS, COMPENSATION AND THE LAW (4th ed. 1987); JUDICIAL STUDIES BOARD, GUIDELINES FOR THE ASSESSMENT OF GENERAL DAMAGES IN PERSONAL INJURY CASES (1992); DAVID A. KEMP & MARGARET S. KEMP, QUANTUM OF DAMAGES (1992); JOHN MUNKMAN, DAMAGES FOR PERSONAL INJURY AND DEATH (8th ed. 1989); David A. Kemp, Damages for Non-Pecuniary Loss, in DAMAGES FOR PERSONAL INJURY AND DEATH (David Kemp ed., 1993).
119. See PETER CANE, ATIYAH'S ACCIDENTS, COMPENSATION AND THE LAW (4th ed. 1987); JUDICIAL STUDIES BOARD, GUIDELINES FOR THE ASSESSMENT OF GENERAL DAMAGES IN PERSONAL INJURY CASES (1992); DAVID A. KEMP & MARGARET S. KEMP, QUANTUM OF DAMAGES (1992); JOHN MUNKMAN, DAMAGES FOR PERSONAL INJURY AND DEATH (8th ed. 1989); David A. Kemp, Damages for Non-Pecuniary Loss, in DAMAGES FOR PERSONAL INJURY AND DEATH (David Kemp ed., 1993).
120. See PETER CANE, ATIYAH'S ACCIDENTS, COMPENSATION AND THE LAW (4th ed. 1987); JUDICIAL STUDIES BOARD, GUIDELINES FOR THE ASSESSMENT OF GENERAL DAMAGES IN PERSONAL INJURY CASES (1992); DAVID A. KEMP & MARGARET S. KEMP, QUANTUM OF DAMAGES (1992); JOHN MUNKMAN, DAMAGES FOR PERSONAL INJURY AND DEATH (8th ed. 1989); David A. Kemp, Damages for Non-Pecuniary Loss, in DAMAGES FOR PERSONAL INJURY AND DEATH (David Kemp ed., 1993).
121. See PETER CANE, ATIYAH'S ACCIDENTS, COMPENSATION AND THE LAW (4th ed. 1987); JUDICIAL STUDIES BOARD, GUIDELINES FOR THE ASSESSMENT OF GENERAL DAMAGES IN PERSONAL INJURY CASES (1992); DAVID A. KEMP & MARGARET S. KEMP, QUANTUM OF DAMAGES (1992); JOHN MUNKMAN, DAMAGES FOR PERSONAL INJURY AND DEATH (8th ed. 1989); David A. Kemp, Damages for Non-Pecuniary Loss, in DAMAGES FOR PERSONAL INJURY AND DEATH (David Kemp ed., 1993).
122. See PETER CANE, ATIYAH'S ACCIDENTS, COMPENSATION AND THE LAW (4th ed. 1987); JUDICIAL STUDIES BOARD, GUIDELINES FOR THE ASSESSMENT OF GENERAL DAMAGES IN PERSONAL INJURY CASES (1992); DAVID A. KEMP & MARGARET S. KEMP, QUANTUM OF DAMAGES (1992); JOHN MUNKMAN, DAMAGES FOR PERSONAL INJURY AND DEATH (8th ed. 1989); David A. Kemp, Damages for Non-Pecuniary Loss, in DAMAGES FOR PERSONAL INJURY AND DEATH (David Kemp ed., 1993).
123. See CHIN & PETERSON, supra note 26; Baldus et al., supra note 26; Hart et al., supra note 40; Viscusi, supra note 21; Wissler et al., supra note 27.
124. See Baldus et al., supra note 26; Bovbjerg et al., Valuing Life and Limb, supra note 26.
125. See Baldus et al., supra note 26; Bovbjerg et al., Valuing Life and Limb, supra note 26.
126. Respondents who requested more information about the plaintiff were told to assume that the person was of average good health and had an average lifestyle before the injury.
127. A potential criticism of our methodology is that our findings, based on relatively brief injury descriptions, might not be consistent with those that would be obtained with a fuller presentation of information, such as at trial. See Vladimir J. Konecni & Ebbe B. Ebbesen, External Validity of Research in Legal Psychology, 3 LAW & HUM. BEHAV. 39 (1979); Wayne Weiten & Shari S. Diamond, A Critical Review of the Jury Simulation Paradigm: The Case of Defendant Characteristics, 3 LAW & HUM. BEHAV. 71 (1979). Few respondents commented that they did not have enough information about the injuries themselves; those who requested additional information sought contextual information that we had deliberately withheld in order to eliminate its potential confounding effects. As discussed in Wissler et al., supra note 27, short as opposed to longer injury descriptions did not produce differences in injury ratings, awards, or the relationship between the two.
128. A potential criticism of our methodology is that our findings, based on relatively brief injury descriptions, might not be consistent with those that would be obtained with a fuller presentation of information, such as at trial. See Vladimir J. Konecni & Ebbe B. Ebbesen, External Validity of Research in Legal Psychology, 3 LAW & HUM. BEHAV. 39 (1979); Wayne Weiten & Shari S. Diamond, A Critical Review of the Jury Simulation Paradigm: The Case of Defendant Characteristics, 3 LAW & HUM. BEHAV. 71 (1979). Few respondents commented that they did not have enough information about the injuries themselves; those who requested additional information sought contextual information that we had deliberately withheld in order to eliminate its potential confounding effects. As discussed in Wissler et al., supra note 27, short as opposed to longer injury descriptions did not produce differences in injury ratings, awards, or the relationship between the two.
129. The median 1988-90 jury award in Cook County (Chicago), Illinois, was $32,550, compared to from $242,500 to $417,200 in several urban New York counties. See DANIELS & MARTIN, supra note 12, at 70-71. When the awards were adjusted for differences in the amount in controversy subject to the jurisdiction of courts in the two states, Cook County's median award increased to $162,316, but was still well below that of New York urban counties. Median awards in rural counties ranged from $24,868 to $39,180 in Illinois and from $66,000 to $192,500 in New York. See id.
130. The population density figures were obtained from the U.S. Bureau of the Census at its internet site at 〈www.census.gov/population/censusdata/90den_stco.txt〉. These designations were used for sampling purposes only; the rural/urban variable used in the analyses relied on the respondents' self-report of where they live (jurors), where jurors in their courts live (judges), or where personal injury plaintiffs in their cases live (lawyers).
131. The population density (number of people per square mile) of these intermediate counties was as follows: twelve counties between 200 and 1000, four counties between 1000 and about 2000, and two counties between approximately 4,500 and 6,500.
132. The response rate for each area was as follows: Illinois urban, 19%; Illinois rural, 28%; New York urban, 20%: New York rural, 26%. These are conservatively estimated response rates. Because the computer-assisted telephone interviewing system used to conduct the interviews counted calls, not people, we are unable to obtain more exact response rates than these. The essential question, however, is whether the respondents are representative of the populations from which they are drawn. We found the age, income, and education distributions of our respondents to approximate fairly closely the distributions of those demographic characteristics in each state, as shown by census data. Census data were obtained through the United State Census Bureau's world wide web pages: venus.census.gov/cdrom/lookup/cmd=tables/db=C90STF3A/lev=state/FO=FIPS.state/Fl= stab.geo/sel=36,new [for New York] and venus.census.gov/cdrom/lookup/cmd=tables/db=C90STF3A/lev=state/FO= FIPS.state/Fl=stab.geo/sel=17,new [for Illinois]. The exception is that the lowest income and education groups are somewhat underrepresented among our respondents, a pattern typical of telephone survey research.
133. When asked where they live, 48% of jurors said a large city, 19% said the suburbs of a large city, 7% said a medium-sized city, and 26% said a small town or rural area. For purposes of analysis, the first two categories were designated "urban" and the latter two were designated "rural."
134. The response rate for each area was as follows: Illinois urban, 68%; Illinois rural, 91%; New York urban, 54%; New York rural, 62%.
135. We were unable to get an eighth judge for each of these four pairs due to the relatively small number of civil trial judges in New York courts and their limited availability.
136. When asked where most of the jurors in their courts live, 45% of all judges said a large city, 17% said the suburbs of a large city, 9% said a medium-sized city, and 29% said a small town or rural area. Thus, across both states, 62% of judges were from urban courts and 38% were from rural courts.
137. These were the Membership Directory of the Defense Research Institute, the Desk Reference of the Association of Trial Lawyers of America, the Martindale-Hubbell Law Directory, and West's Legal Directories.
138. The response rate for each area was as follows: Illinois urban, 83%; Illinois rural, 86%; New York urban, 70%; New York rural, 74%.
139. See Appendix B. The instructions used for Illinois respondents were adapted from ILLINOIS PATTERN JURY INSTRUCTION - CIVIL, §§ 30.00-30.05 (3d ed. 1994). The instructions used for New York respondents were adapted from NEW YORK PATTERN JURY INSTRUCTIONS - CIVIL § 2:280 (2d ed. 1994).
140. See Appendix B. The instructions used for Illinois respondents were adapted from ILLINOIS PATTERN JURY INSTRUCTION - CIVIL, §§ 30.00-30.05 (3d ed. 1994). The instructions used for New York respondents were adapted from NEW YORK PATTERN JURY INSTRUCTIONS - CIVIL § 2:280 (2d ed. 1994).
141. Appendix B contains the interview protocol used.
142. Respondents who gave an award of zero were dropped from the study if the reason for their award was (a) they felt the defendant was not responsible (despite the fact that the stimulus materials had stated that a prior jury already had established the defendant's liability), or (b) they did not believe in the concept of compensation for general damages. If a potential juror in an actual trial expressed the latter attitude during jury selection, the person would be excluded from the jury. During the trial, the judge would admonish a juror expressing this attitude that the law had established the plaintiff's right to compensation for general damages and that one's duty as a juror was to determine a fair amount. Respondents who gave a zero dollar award were retained if they gave reasons such as: the pain was only temporary; the injury was not disabling, not serious, or caused no permanent damage; or the plaintiff was unconscious and, thus, did not experience pain and suffering.
143. See generally BARBARA G. TABACHNICK & LINDA S. FIDELL, USING MULTIVARIATE STATISTICS (1983).
144. The purpose of transforming non-normal distributions is to make them more nearly normal in order to use statistical procedures that require normality; to use highly skewed distributions could lead to misleading results. It is important to realize that correlations among variables depend most heavily on the rank order of cases along each measure and much less on the relative distances between the cases. The transformations do not alter the rank order. When looking for relationships among variables, the use of such transformations advances the effectiveness and validity of the search. Nonetheless some authors have criticized the use of such data transformations on the grounds that "defendants and plaintiffs live in a world of real dollars, not of log dollars." Sunstein et al., supra note 51, at 2077 n.21.
145. A log transformation was not used because it somewhat overcorrected the skewness in jurors' awards and substantially overcorrected the judges' and lawyers' awards.
146. See Appendix C for a brief summary of some concepts of regression analysis.
147. F(2,556) = 4.44, p < .05.
148. F(2,554) = 2.54, p = .08.
149. For each respondent group, order interacted significantly with several of the predictors when predicting overall severity. When predicting awards, order interacted with pain ratings for the jurors, but did not interact with any predictors for the judge or lawyer groups.
150. The variance accounted for by individual predictors, or groups of predictors, does not simply add together to equal the amount of variance accounted for by all of them combined because the components often are somewhat redundant. As here, the total variance accounted for seems to be less than the sum of its component parts. Other times, see infra Section IV.B.1, the combined variables can account for more than the sum of their parts.
151. See Table 1A. The Betas reflect only the unique contribution of each item, whereas the r's reflect both unique and shared contributions combined. For an explanation of the statistical terms used in this Section, see Appendix C.
152. The inter-item correlations among the four injury ratings ranged from .49 to .67; the correlations among the sociodemographic characteristics ranged from .01 to .18, with the exception of r = .45 for income and education; and the correlations between the two sets of factors ranged from .01 to .13.
153. Familiarity with the injury might not have been significantly related to overall severity ratings for several reasons. First, only a relatively small portion (12%) of the jurors knew someone with the particular injury they were asked to judge, making it more difficult to detect an effect. Second, it is plausible that knowing someone who had a serious injury has the opposite effect on severity ratings as does knowing someone who had a minor injury. That is, familiarity with a minor injury might confirm its minimal impact and produce lower severity ratings than if one were not familiar with that injury. Conversely, an understanding of the truly devastating impact of major injuries may produce higher severity ratings than if one were not familiar with the injury. These countervailing responses might cancel each other out.
154. The inter-item correlations among the four injury ratings ranged from .39 to .60; the correlations among the sociodemographic characteristics ranged from .02 to .33, with the exception of r = .55 for the percentage of personal injury cases m the judges' caseload and rural/urban location; and the correlations between the two sets of factors ranged from .01 to .14.
155. The inter-item correlations among the four injury ratings ranged from .40 to .53; the correlations among the sociodemographic characteristics ranged from .01 to .33; and the correlations between the two sets of factors ranged from .01 to .16.
156. The number of years that the plaintiffs' lawyers had been handling personal injury cases was not included in the multivariate analyses because of missing data. But it appears from the very small bivariate correlation between number of years in personal injury practice and overall severity ratings, r(147) = -.01. that no relationship exists between these variables.
157. The inter-item correlations among the four injury ratings ranged from .31 to .46, with the exception of r = .72 for disability and mental suffering; the correlations among the sociodemographic characteristics ranged from .01 to .21; and the correlations between the two sets of factors ranged from .01 to .13.
158. The number of years that the defense lawyers had been handling personal injury cases was not included in the multivariate analyses because of missing data. But it appears from the very small bivariate correlation between number of years in personal injury practice and overall severity ratings, r(165) = .04, that no relationship exists between these variables.
159. The between-subjects covariance parameter estimate was .006 for jurors, -.008 for judges, -.003 for plaintiffs' lawyers, and .06 for defense lawyers.
160. The within-subjects covariance parameter estimate was .27 for jurors, .31 for judges, .23 for plaintiffs' lawyers, and .17 for defense lawyers.
161. Shared variance could explain the reduced impact of disability for defense lawyers compared to the other groups. For them, the correlation between disability and mental suffering was r = .72, while it was smaller for the other groups.
162. Because the four specific injury ratings were highly correlated with overall severity ratings, overall injury severity was not included as a predictor of awards in order to avoid multicollinearity.
163. The number of years that the plaintiffs' lawyers had been handling personal injury cases was not included in the multivariate analyses because of missing data, but it appears from the very small bivariate correlation between number of years in personal injury practice and awards, r(148) = .05, that no relationship exists between these variables.
164. The number of years that the defense lawyers had been handling personal injury cases was not included in the multivariate analyses because of missing data, but it appears from the very small bivariate correlation between number of years in personal injury practice and awards, r(166) = -.08, that no relationship exists between these variables.
165. The between-subjects covariance parameter estimate was .21 for jurors, compared to .06 for judges, .01 for plaintiffs' lawyers, and .02 for defense lawyers
166. See supra note 82 and accompanying text.
167. The within-subjects covariance parameter estimate was .56 for jurors, .47 for judges, .48 for plaintiffs' lawyers, and .35 for defense lawyers.
168. Recall that, if they inquired, respondents were told that the plaintiff was of average good health and had an average lifestyle before the injury, which seemed to be sufficient information for most of the respondents.
169. It is interesting to note that, during the interviews, lawyers and judges requested information that, legally, should have no relevance for awards for general damages, but which revealed their own search for shortcuts to estimating general damages. For instance, they wanted to know the amount of the plaintiff's medical expenses and lost wages so that they could use a formula to calculate awards for general damages. That judges and lawyers sometimes grasped at such shortcuts suggests that they did not have much better bearings than jurors in the chartless seas of determining general damages awards. They also wanted to know the effect of the injury on employment status. Relatedly, Vidmar & Rice, supra note 18, at 896-97 found that experienced lawyers serving as arbitrators tended to make more improper use of information than lay jurors had, such as using evidence of liability to fix damages and increasing the size of awards to cover attorneys' fees.
170. Calculating these correlations without first averaging across people, that is, using the respondent instead of the injury as the unit of analysis, produces these relationships: .38 for jurors, .65 for judges, .61 for plaintiffs' lawyers, and .71 for defense lawyers. The lower correlation for jurors no doubt reflects the greater variability noted above.
171. Larger awards by New York judges and lawyers may reflect the fact that New York instructions explicitly include compensation for "loss of enjoyment of life," while the Illinois instructions do not specify that this component should be considered in determining general damages. Compare NEW YORK PATTERN JURY INSTRUCTIONS - CIVIL § 2:280.1 (2d ed. 1994) with ILLINOIS PATTERN JURY INSTRUCTIONS - CIVIL, §§ 30.00 - 30.05 (3d ed. 1994). Cutting the other way, New York instructions direct that compensation be given only for conscious pain and suffering, while Illinois instructions do not address this issue. Compare NEW YORK PATTERN JURY INSTRUCTIONS - CIVIL § 2:280 cmt. (2d ed. 1994) with ILLINOIS PATTERN JURY INSTRUCTIONS - CIVIL, § 30.05 (3d ed. 1994). Although this difference would tend to produce smaller awards in New York, it was unlikely to have much effect in the present study because the plaintiff was not conscious of her or his condition in only two of our 62 injuries.
172. Gender might not have been related to awards for judges or lawyers because only a relatively small portion of each group was female (13% of judges, 13% of plaintiffs' lawyers, and 7% of defense lawyers), making it more difficult to detect an effect. Or perhaps because they have learned to see damages in similar ways regardless of their gender.
173. Illinois: F(3,183) = 14.78, p < .001; New York: F(3,183) = 11.70, p < .001.
174. F(1,61) = 27.75, p < .001.
175. F(1,61) = 34.02, p < .001.
176. F(1,61) = 6.33, p < .05.
177. Versus jurors: F(1,61) = 34.02. p < .001. Versus judges: 5(1,61) = 5.12, p < .05. Versus plaintiffs' lawyers: F(1,61) = 16.66, p < .001.
178. Versus judges: F(1,61) =7.47, p < .01. Versus plaintiffs' lawyers: F(1,61) = 7.13, p < .05. Versus defense lawyers: F(1,61) = 30.88, p < .001.
179. Versus judges: F(1,61) = 15.63, p < .001. Versus plaintiffs' lawyers: F(1,61) = 6.88, p < .05. Versus jurors: F(1,61) = 30.88, p < .001.
180. For each of the preceding correlations, n = 62 injuries and the significance level was p < .001.
181. For each of the immediately preceding correlations, n = 62 injuries and the significance level was p < .001.
182. F(3,183)=7.55, p < .001.
183. Versus jurors: F(1,61) = 6.59, p < .05. Versus plaintiffs' lawyers: F(1.61) = 11.01, p < .01.
184. Versus jurors: F(1,61) = 6.64, p < .05. Versus plaintiffs' lawyers, F(1,61) = 12.69, p <.01.
185. F(3,183) = 2.56, p = .06.
186. F(1,61) = 2.88, p = .095.
187. F(1,61) = 5.14, p < .05.
188. F(1,61) = 2.97, p = .09.
189. F(1,61) = 2.88, p = .095.
190. For each of the preceding correlations, n = 62 injuries and the significance level was p < .001.
191. For each of the immediately preceding correlations, n = 62 injuries and the significance level was p < .001.
192. Because the data for this group of analyses consisted of raw damages estimates, medians were used to reduce the influence of outliers.
193. t(61) = 3.60, p < .01.
194. t(61) = 3.32, p < .01.
195. t(61) = 2.67, p < .05.
196. Illinois jurors: t(61) = 3.17, p < .01. New York jurors: t(61) = 3.60, p < .01.
197. For each of the preceding correlations, n = 62 injuries and the significance level was p < .001.
198. For each of the immediately preceding correlations, n = 62 injuries and the significance level was p < .001.
199. t(61) = 2.19, p < .05.
200. t(61) = 2.45. p < .05.
201. t(61) = 2.10, p < .05.
202. t(61) = 2.49, p < .05.
203. r(60) = .78, p < .001.
204. r(60) = .37. p < .01.
205. r(60) = .24, p = .06.
206. r(60) = .46, p < .001.
207. r(60) = .47, p < .001.
208. r(60) = .21, p = .10.
209. Larger samples produce distributions with smaller standard errors than smaller samples. For example, a set of samples of size 6 or 12 as compared to samples of size 1.
210. People in decisionmaking groups tend to coalesce toward a consensus; their shifts tend to be toward, rather than away from, each other. This is a basic aspect of group behavior, which has long been observed. See, e.g., A. PAUL HARE, HANDBOOK OF SMALL GROUP RESEARCH 19 (1976) (groups tend to establish norms which are viewed as legitimate by group members); MUZAFIR SHERIF, THE PSYCHOLOGY OF SOCIAL NORMS 104 (1936) (people in social interaction gravitate toward sharing the perceptions and judgments of those with whom they interact).
211. People in decisionmaking groups tend to coalesce toward a consensus; their shifts tend to be toward, rather than away from, each other. This is a basic aspect of group behavior, which has long been observed. See, e.g., A. PAUL HARE, HANDBOOK OF SMALL GROUP RESEARCH 19 (1976) (groups tend to establish norms which are viewed as legitimate by group members); MUZAFIR SHERIF, THE PSYCHOLOGY OF SOCIAL NORMS 104 (1936) (people in social interaction gravitate toward sharing the perceptions and judgments of those with whom they interact).
212. See Shari Seidman Diamond et al., Juror Judgments About Liability and Damages: Sources of Variability and Ways to Increase Consistency, 48 DEPAUL L. REV. 301, 316 tbl. IV (1998) (finding the standard deviation of their individual jurors' general damages awards to be $4,255,056 compared to $714,556 for decisions on the same case facts by deliberating juries); Shari S. Diamond & Jonathan D. Casper, UNDERSTANDING JURIES (forthcoming) (using data from a completely different set of jurors and a completely different case and finding the standard deviation of jurors' awards to be $175,988 and of juries' awards to be $122,749).
213. See Shari Seidman Diamond et al., Juror Judgments About Liability and Damages: Sources of Variability and Ways to Increase Consistency, 48 DEPAUL L. REV. 301, 316 tbl. IV (1998) (finding the standard deviation of their individual jurors' general damages awards to be $4,255,056 compared to $714,556 for decisions on the same case facts by deliberating juries); Shari S. Diamond & Jonathan D. Casper, UNDERSTANDING JURIES (forthcoming) (using data from a completely different set of jurors and a completely different case and finding the standard deviation of jurors' awards to be $175,988 and of juries' awards to be $122,749).
214. The only suggestion to the contrary of which we are aware appears in Sunstein et al., supra note 51. They allude to the familiar notion that larger groups (such as juries) show less variability than smaller groups or individuals. But they also argue that there exists an "amplification of bias" by which group deliberation would produce greater variance than was found in their study of individual mock jurors. See id. at 2101 n.128. This argument confuses several principles upon which it relies. Sunstein et al. are correct that group deliberation produces group polarization, a post-deliberation shift toward positions more extreme than the prediscussion central tendency of the individuals. See, e.g., Martin F. Kaplan, Discussion Polarization Effects in a Modified Jury Decision Paradigm: Informational Influences, 40 SOCIOMETRY 262 (1977); Serge Moscovici & Marisa Zavalloni, The Group as a Polarizer of Attitudes, 12 J. PERSONALITY & SOC. PSYCHOL. 125 (1969); David G. Myers & Helmut Lamm, The Group Polarization Phenomenon, 83 PSYCHOL. BULL. 602 (1976). But they overlook the fact that groups tend to coalesce around that more extreme position. Thus, in a given case, groups will be more consistent than individuals at the same time that they will be more extreme (in whichever direction). When Sunstein et al. jump from the phenomenon of deliberation-induced shifts to the conclusion of "even greater variance," Sunstein et al., supra note 51, at 2101 n.128, they have jumped from thinking about the variance for a given case to the variance of the mass of cases. That is, some types of cases will shift one way and some the other way, resulting in greater variance across a set of different cases. But that phenomenon is irrelevant to the policy issue of variability among like cases. The unwanted variability in cases is not that different cases receive different awards (vertical equity requires that they do), but that any given case would receive different awards from different decisionmakers (that would be horizontal inequity). The available evidence supports the conclusion that variance declines when we move from jurors to juries. See supra note 146.
215. The only suggestion to the contrary of which we are aware appears in Sunstein et al., supra note 51. They allude to the familiar notion that larger groups (such as juries) show less variability than smaller groups or individuals. But they also argue that there exists an "amplification of bias" by which group deliberation would produce greater variance than was found in their study of individual mock jurors. See id. at 2101 n.128. This argument confuses several principles upon which it relies. Sunstein et al. are correct that group deliberation produces group polarization, a post-deliberation shift toward positions more extreme than the prediscussion central tendency of the individuals. See, e.g., Martin F. Kaplan, Discussion Polarization Effects in a Modified Jury Decision Paradigm: Informational Influences, 40 SOCIOMETRY 262 (1977); Serge Moscovici & Marisa Zavalloni, The Group as a Polarizer of Attitudes, 12 J. PERSONALITY & SOC. PSYCHOL. 125 (1969); David G. Myers & Helmut Lamm, The Group Polarization Phenomenon, 83 PSYCHOL. BULL. 602 (1976). But they overlook the fact that groups tend to coalesce around that more extreme position. Thus, in a given case, groups will be more consistent than individuals at the same time that they will be more extreme (in whichever direction). When Sunstein et al. jump from the phenomenon of deliberation-induced shifts to the conclusion of "even greater variance," Sunstein et al., supra note 51, at 2101 n.128, they have jumped from thinking about the variance for a given case to the variance of the mass of cases. That is, some types of cases will shift one way and some the other way, resulting in greater variance across a set of different cases. But that phenomenon is irrelevant to the policy issue of variability among like cases. The unwanted variability in cases is not that different cases receive different awards (vertical equity requires that they do), but that any given case would receive different awards from different decisionmakers (that would be horizontal inequity). The available evidence supports the conclusion that variance declines when we move from jurors to juries. See supra note 146.
216. The only suggestion to the contrary of which we are aware appears in Sunstein et al., supra note 51. They allude to the familiar notion that larger groups (such as juries) show less variability than smaller groups or individuals. But they also argue that there exists an "amplification of bias" by which group deliberation would produce greater variance than was found in their study of individual mock jurors. See id. at 2101 n.128. This argument confuses several principles upon which it relies. Sunstein et al. are correct that group deliberation produces group polarization, a post-deliberation shift toward positions more extreme than the prediscussion central tendency of the individuals. See, e.g., Martin F. Kaplan, Discussion Polarization Effects in a Modified Jury Decision Paradigm: Informational Influences, 40 SOCIOMETRY 262 (1977); Serge Moscovici & Marisa Zavalloni, The Group as a Polarizer of Attitudes, 12 J. PERSONALITY & SOC. PSYCHOL. 125 (1969); David G. Myers & Helmut Lamm, The Group Polarization Phenomenon, 83 PSYCHOL. BULL. 602 (1976). But they overlook the fact that groups tend to coalesce around that more extreme position. Thus, in a given case, groups will be more consistent than individuals at the same time that they will be more extreme (in whichever direction). When Sunstein et al. jump from the phenomenon of deliberation-induced shifts to the conclusion of "even greater variance," Sunstein et al., supra note 51, at 2101 n.128, they have jumped from thinking about the variance for a given case to the variance of the mass of cases. That is, some types of cases will shift one way and some the other way, resulting in greater variance across a set of different cases. But that phenomenon is irrelevant to the policy issue of variability among like cases. The unwanted variability in cases is not that different cases receive different awards (vertical equity requires that they do), but that any given case would receive different awards from different decisionmakers (that would be horizontal inequity). The available evidence supports the conclusion that variance declines when we move from jurors to juries. See supra note 146.
217. The median of individual judgments provides a very good estimate of the group judgment. See Shari Seidman Diamond & Jonathan D. Casper, Blindfolding the Jury to Verdict Consequences: Damages, Experts, and the Civil Jury, 26 L. & SOC'Y REV. 513, 545 tbl. 4 (1992) which found that using medians of individual pre-deliberation judgments to estimate group decisions correlated .62 with the decisions of deliberating juries composed of those same individuals. By contrast, other plausible methods of statistically estimating the group decision had lower, sometimes much lower, correlations.
218. A better test of this, but a far more expensive one, would have jurors deliberate as groups, and would treat those group judgments as the ones to be modeled and compared to those of judges and lawyers.
219. Moreover, larger groups do so to a greater extent than smaller groups. See Michael J. Saks, The Smaller the Jury, the Greater the Unpredictability, 79 JUDICATURE 263 (1996); see also Michael J. Saks & Mollie Weighner Marti, A Meta-Analysis of the Effects of Jury Size, 21 LAW & HUM. BEHAV. 451, 463-64 (1997).
220. Moreover, larger groups do so to a greater extent than smaller groups. See Michael J. Saks, The Smaller the Jury, the Greater the Unpredictability, 79 JUDICATURE 263 (1996); see also Michael J. Saks & Mollie Weighner Marti, A Meta-Analysis of the Effects of Jury Size, 21 LAW & HUM. BEHAV. 451, 463-64 (1997).
221. See the Measures section, supra Section III.E.1, for a discussion of how we identified extreme outliers. They constituted 2.32% of the jurors' awards. For comparison, extreme outliers constituted 1.03% of judges' and 1.21% of lawyers' awards.
222. See Table 1.
223. A similar pattern was seen in the two studies in Wissler et al., supra note 27.
224. Similarly, in the two studies in Wissler et al., supra note 27, at 189, 200, undergraduates' injury perceptions accounted for 75% and 89%, respectively, of the variance in their overall severity assessments.
225. For example, James Griffith, an attorney specializing in medical malpractice defense wrote, "There's no limit on what jurors can award for pain and suffering, so too often they act like Santa Claus, handing out millions of dollars in cases involving comparatively minor injuries." James Griffith, What it Will Take to Solve the Malpractice Crisis, MED. ECON. Sept. 27, 1982, at 195.
226. See Shari Seidman Diamond, Scientific Jury Selection: What Social Scientists Know and Do Not Know, 73 JUDICATURE 178, 180 (1990); Steven D. Penrod, Predictors of Jury Decision-making in Criminal and Civil Cases: A Field Experiment, 3 FORENSIC REP. 261 (1990); Michael J. Saks, What Do Jury Experiments Tell Us About How Juries (Should) Make Decisions?, 6 S. CAL. INTERDISC. L.J. 1, 9-13 (1998).
227. See Shari Seidman Diamond, Scientific Jury Selection: What Social Scientists Know and Do Not Know, 73 JUDICATURE 178, 180 (1990); Steven D. Penrod, Predictors of Jury Decision-making in Criminal and Civil Cases: A Field Experiment, 3 FORENSIC REP. 261 (1990); Michael J. Saks, What Do Jury Experiments Tell Us About How Juries (Should) Make Decisions?, 6 S. CAL. INTERDISC. L.J. 1, 9-13 (1998).
228. See Shari Seidman Diamond, Scientific Jury Selection: What Social Scientists Know and Do Not Know, 73 JUDICATURE 178, 180 (1990); Steven D. Penrod, Predictors of Jury Decision-making in Criminal and Civil Cases: A Field Experiment, 3 FORENSIC REP. 261 (1990); Michael J. Saks, What Do Jury Experiments Tell Us About How Juries (Should) Make Decisions?, 6 S. CAL. INTERDISC. L.J. 1, 9-13 (1998).
229. See Diamond et al., supra note 146, at 314 (finding, in a study that used a video-taped presentation of a highly realistic simulated trial to 1042 mock jurors from Cook County, Illinois that "[o]ur attempt to trace the sources of this variation [in damages awards] to individual differences in the background and attitude of jurors met with little success"); see also id. at 307 tbl. I.
230. See Table 2.
231. For jurors and lawyers, some of the main effects of the injury attributes are qualified by interactions. See the Results Section, supra Section IV.B, for the details.
232. Instructions are often difficult for jurors to understand. See Michael J. Saks, Judicial Nullification, 68 IND. L.J. 1281, 1282-83 (1993).
233. As noted previously, research has found little relationship between jurors' socio-demographic attributes and the verdicts of the jurors or the juries on which they sit. See supra notes 156-157 and accompanying text.
234. Although rural or urban locale did not affect the size of awards, it did interact with perceived disfigurement such that disfigurement had a significant impact on the awards of urban jurors but not rural jurors.
235. See DANIELS & MARTIN, supra note 12, at 69-90. A possible explanation for the differences observed by Daniels and Martin is that their data were based on total awards, and interstate differences in medical expenses, earnings, and the cost of living could account for differences in awards.
236. See DANZON, supra note 33, at 63, 74-75. A possible explanation for the differences observed by Danzon is that her data could reflect differences in medical expenses, earnings, and the cost of living in urban versus rural areas.
237. Another difference is that Danzon's research used states as the unit of analysis, rather than individuals or juries. Inferences drawn about relationships at the state level may or may not hold at smaller levels of aggregation. This problem is known as the "ecological fallacy." Thus, while Danzon found that urban areas (actually, relatively more urban states) experienced larger awards than more rural areas (actually, relatively more rural states), there is no reason to expect her findings to apply to urban versus rural areas within states, or to people from urban versus rural areas.
238. 2 = .23. If this insight is correct, the higher proportions of variance accounted for in the models judges and lawyers reflect their having (in their heads, from the numerous other cases they have known) a more complete cognitive reference scale of injuries to provide a context for thinking about the case now under consideration. That, in turn, suggests a relatively simple and yet potentially powerful reform -providing jurors with a frame of reference for determining the appropriate general damages award - that should produce considerable improvement in the predictability and stability of jurors' awards of general damages. The issue of providing jurors with such guidance is discussed below.
239. See supra Section III.C.
240. See related discussions in Sunstein et al., supra note 51, at 2106-07, and Wissler et al., supra note 27, at 193.
241. See studies cited supra notes 26-27.
242. The findings of Vidmar & Rice, supra note 18 - that jurors and arbitrators have similar patterns of correlations of perceptions of disfigurement, etc., with awards - parallel our own. In both states, our findings showed the lowest correlation was between jurors and plaintiffs' lawyers, suggesting an interesting area of further study.
243. See Table 4.
244. See Daniel S. Bailis & Robert J. MacCoun, Estimating Liability Risks with the Media as Your Guide: A Content Analysis of Media Coverage of Tort Litigation, 20 LAW & HUM. BEHAV. 419, 421, 426 (1996) ("It is a small step to assert that reading about million-dollar verdicts might lead people to overestimate the frequency of large jury awards."); see also Michael J. Saks, Public Opinion About the Civil Jury: Can Reality be Found in the Illusions?, 48 DEPAUL L. REV. 221, 231-34 (1998).
245. See Daniel S. Bailis & Robert J. MacCoun, Estimating Liability Risks with the Media as Your Guide: A Content Analysis of Media Coverage of Tort Litigation, 20 LAW & HUM. BEHAV. 419, 421, 426 (1996) ("It is a small step to assert that reading about million- dollar verdicts might lead people to overestimate the frequency of large jury awards."); see also Michael J. Saks, Public Opinion About the Civil Jury: Can Reality be Found in the Illusions?, 48 DEPAUL L. REV. 221, 231-34 (1998).
246. See discussion supra notes 144-151 and accompanying text.
247. The correlations between the lawyers' and judges' own awards and the awards they predicted the "average juror" would give ranged from .49 to .93 in Illinois and from .89 to .96 in New York.
248. See, e.g., Donald R. Songer, Tort Reform in South Carolina: The Effect of Empirical Research on Elite Perceptions Concerning Jury Verdicts, 39 S.C. L. REV. 585 (1988).
249. See Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 COGNITIVE PSYCHOL. 207 (1973); Amos Tversky & Daniel Kahneman, Judgment under Uncertainty: Heuristics and Biases, 185 SCIENCE 1124 (1974).
250. See Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 COGNITIVE PSYCHOL. 207 (1973); Amos Tversky & Daniel Kahneman, Judgment under Uncertainty: Heuristics and Biases, 185 SCIENCE 1124 (1974).
251. The correlations between what judges and lawyers predicted the average juror would award and what our jurors in fact awarded present an odd pattern, with some of the most wide-ranging correlations found in the entire study. Plaintiffs' lawyers do both the best (in Illinois, r = .78) and the worst (in New York, r = .21) job of predicting our jurors' awards in the cases. Perhaps the lack of a real pattern is the most one can say about these correlations.
252. See Sunstein et al., supra note 51, at 2112-13 ("It would be reasonable to react to our study by suggesting a simple reform: Juries should decide questions of civil liability, just as they do questions of criminal liability. But judges should decide on the appropriate level of punitive damages, just as they do criminal punishment, subject, in both cases, to guidelines laid down in advance."). Sunstein et al. presented 28 variations of 10 case vignettes to 899 randomly selected registered voters in Travis County, Texas, and asked them to (a) evaluate the cases, and (b) recommend punitive damages awards to assess agains the defendants in those cases. Id. at 2095. Sunstein et al. found that jurors were breathtakingly consistent in their judgments of the defendant's outrageousness (r = .99), but that variability increased (reliability and predictability decreased) in the second step, namely translating those judgments into punitive awards (r = .42). Id. at 2098, 2103. Sunstein et al. conlude that "individual differences in dollar awards produce severe unpredictability and highly erratic outcomes," id. a 2103, and implicity assume, without any data, that judges would make very different decisions than jurors do, id. at 2113.
253. Perhaps it goes without saying that predictability and consistency might be purchased at the cost of more important values. For example, the rule of thumb some lawyers use to come up with a figure for general damages for purposes of settlement negotiation -multiplying medical specials by three - would, if adopted as a legal rule for assigning damages, produce highly predictable outcomes, but at the expense of injury- and victim-specific considerations. Sometimes the amount awarded would be too great and sometimes it would be too small. It may be worth noting that some level of variablility is beneficial to the legal process. The proper level of uncertainty helps to promote settlements, while not promoting so many that the courts do not receive the cases necessary to monitor society's disputes, and thereby to continually refine and announce the law. For more detailed discussion of this point, see Michael J. Saks, Enhancing and Restraining Accuracy in Adjudication, 51 LAW & CONTEMP. PROBS. 243 (1988). A rational goal would be to aim to calibrate the level of uncertainty to seek its optimal level, rather that to aim to eliminate uncertainty from the litigation system.
254. Thus, we found higher reliability in awards (in terms of agreement between judges and jurors) than Sunstein et al. did (in terms of agreement among jurors). Perhaps this reflects differences in the challenge of assigning dollar values for general damages versus for punitive damages. If so, it implies that Sunstein et al.'s speculation that their findings would generalize to other juror decision tasks about damages is unwarranted. Sunstein et al., supra note 51, at 2131-38.
255. Taking the square root of the R-squareds in Tables 2A and 2B, for jurors and judges, respectively.
256. See supra Section IV.D.
257. Of course, many judges believe that they can perform this cognitive feat, but what little hard data exist on the subject indicates that judges are no better than jurors at disregarding evidence they are not supposed to know. See Landsman & Rakos, supra note 18.
258. Especially in cases where jurors have made unpopular decisions with which judges have not manifested disagreement.
259. See Valerie P. Hans, Attitudes Toward the Civil Jury: A Crisis of Confidence?, in VERDICT: ASSESSING THE CIVIL JURY SYSTEM 248, 262-65 (Robert E. Litan ed., 1993). It is also worth noting that the law has mechanisms for reining in the rare runaway jury, namely additur/remittitur review and appeals.
260. See Diamond et al., supra note 146; Saks, supra note 150; Saks & Marti, supra note 150.
261. See supra note 166 and accompanying text; see also Sunstein et al., supra note 51, at 2104.
262. See Saks et al., supra note 27 (reporting a jury simulation experiment showing that giving mock jurors guidance tended to reduce the variability of general damages awards for medium- and high-severity injuries).
263. See Baldus et al., supra note 26.
264. For details of a methodology for gathering and using such data in courts, see Baldus et al., supra note 26. See also Bovberg et al., Valuing Life and Limb, supra note 26.
265. Others have discussed these and additional techniques for dealing with this problem. See ABA REPORT OF THE ACTION COMMISSION TO IMPROVE THE TORT LIABILITY SYSTEM 10-15 (1987); ALI REPORTERS' STUDY ON ENTERPRISE LIABILITY FOR PERSONAL INJURY, 199-230 (1991); Bovbjerg et al., Valuing Life and Limb, supra note 26; Diamond et al., supra note 146; Mark Geistfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries, 83 CAL. L. REV. 775 (1995); Sunstein et al., supra note 51.
266. Others have discussed these and additional techniques for dealing with this problem. See ABA REPORT OF THE ACTION COMMISSION TO IMPROVE THE TORT LIABILITY SYSTEM 10-15 (1987); ALI REPORTERS' STUDY ON ENTERPRISE LIABILITY FOR PERSONAL INJURY, 199-230 (1991); Bovbjerg et al., Valuing Life and Limb, supra note 26; Diamond et al., supra note 146; Mark Geistfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries, 83 CAL. L. REV. 775 (1995); Sunstein et al., supra note 51.
267. Others have discussed these and additional techniques for dealing with this problem. See ABA REPORT OF THE ACTION COMMISSION TO IMPROVE THE TORT LIABILITY SYSTEM 10-15 (1987); ALI REPORTERS' STUDY ON ENTERPRISE LIABILITY FOR PERSONAL INJURY, 199-230 (1991); Bovbjerg et al., Valuing Life and Limb, supra note 26; Diamond et al., supra note 146; Mark Geistfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries, 83 CAL. L. REV. 775 (1995); Sunstein et al., supra note 51.
268. Others have discussed these and additional techniques for dealing with this problem. See ABA REPORT OF THE ACTION COMMISSION TO IMPROVE THE TORT LIABILITY SYSTEM 10-15 (1987); ALI REPORTERS' STUDY ON ENTERPRISE LIABILITY FOR PERSONAL INJURY, 199-230 (1991); Bovbjerg et al., Valuing Life and Limb, supra note 26; Diamond et al., supra note 146; Mark Geistfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries, 83 CAL. L. REV. 775 (1995); Sunstein et al., supra note 51.
269. The obvious hypothesis that the latter finding is due to a lack of experience with the task is only that, a hypothesis.
270. The introduction to the interview for lawyers and judges varied somewhat from the introduction for jurors. The jurors' introduction had more information about the study (since they had not received a letter about the study in advance of the phone call) and more explanation of personal injury cases. The same instructions for determining an award were read to all respondent groups within each state. The questions about the awards and the injuries were asked of all participants in the same order. The particular socio-demographic items varied with the respondent group; the questions asked of each group are included here.
271. The last sentence in the instructions in both states was included for only the judges and lawyers, who would tend to be aware of existing caps while the jurors would not.