Juror decisions about damages in employment discrimination cases

Juror Decisions aboutDamages in EmploymentDiscrimination Cases

Edith Greene, Ph.D.,* Cheryl Downey, Ph.D.and Jane Goodman-Delahunty, J.D., Ph.D.

This article examines in¯uences on mock juror and jury

decision making regarding damages in an employment

discrimination case. We examined the e�ects of expert

economic testimony, suggested awards, and con¯icting

economic testimony on decisions regarding lost wages

and bene®ts and pain and su�ering. Participants heard

excerpts of an age discrimination lawsuit in which

liability had previously been determined in the plainti�'s

favor. We varied whether suggested awards were

included and if so, whether they were presented by

attorneys, a plainti�'s expert economist, or both a

plainti�'s and defendant's expert economist. Results

tentatively showed that attorney's suggestions were not

persuasive and that the e�ects of expert testimony

depend on its nature and on the particular decision task

at hand. Copyright # 1999 John Wiley & Sons, Ltd.

INTRODUCTION

All victims of employment discrimination (race, age, color, etc.) are entitled torecover lost back wages and lost future income as part of traditional make-wholerelief. However, recoverable damages for victims of age discrimination under theAge Discrimination in Employment Act (ADEA), 29 U.S.C. Sections 621-633a,di�er from those available to other discrimination victims in several ways. Underthe ADEA, successful plainti�s can recover liquidated damages (equivalent todouble the back pay wages) for willful violations of the statute, but not pain andsu�ering damages or punitive damages.

CCC 0735±3936/99/010107±15$17.50Copyright # 1999 John Wiley & Sons, Ltd.

Behavioral Sciences and the Law

Behav. Sci. Law 17: 107±121 (1999)

* Correspondence to: Dr E. Greene, Dept of Psychology, University of Colorado, Colorado Springs,CO 80933, USA; e-mail: [email protected] Greene is Associate Professor of Psychology, University of Colorado, Colorado Springs, CO.

Cheryl Downey is a graduate student at the University of HawaiiÐManoa. Jane Goodman-Delahunty isan Administrative Judge with the US Equal Employment Opportunity Commission and a Mediator andArbitrator with Judicial Arbitration and Mediation Services/Endispute. We thank former ColoradoFourth Judicial District Court Administrator Douglas Haxton and Jury Commissioner EldeneMosbarger for allowing us access to jurors, Robert Provost and Patricia Combs for assistance inanalyzing jury deliberations, and an anonymous reviewer whose suggestions improved our presentationof these data.

Victims of age discrimination are also entitled to relief for retaliation claimsunder the Fair Labor Standards Act, 29 U.S.C. Section 216(b) amended 1977,the enabling statute for the ADEA. Compensatory1 and punitive2 damages areavailable in addition to lost wages and liquidated damages for retaliation claims.

Thus, in some age discrimination cases, the prevailing plainti� will recover lostwages only (no willful violation). In other age cases, the prevailing plainti� willrecover lost wages and liquidated damages (willful violation). In yet other age-related cases, where the plainti� prevails in proving retaliatory conduct by theemployer, whether or not she prevails regarding a claim of age discrimination perse, the plainti� may recover lost wages, liquidated damages, pain and su�eringdamages and punitive damages. Because evidence of all aspects may be admitted incases in which both age discrimination and/or reprisal are alleged, jurors may heartestimony on both lost wages and pain and su�ering.

Several state antidiscrimination statutes permit unrestricted recovery of tort-style damages. In these cases, jurors can hear testimony about and award damagesfor age bias in the form of back pay, emotional distress, and punitive damages.(See, e.g., Gordon v. Witco Corp. (1986) in which 16 employees over age 40terminated in a reduction-in-force received $900,000 in back pay, $400,000 inemotional distress, and $7.5 million in punitive damages.) The same types ofdamages are recoverable under common law for claims brought as traditional tortsapplied to the employment context, (e.g., for intentional or negligent in¯iction ofemotional distress, although elements of proof to establish liability would varyaccordingly).

Whether juries are competent to make reasonable assessments of claims for lostwages and pain and su�ering in age and other discrimination cases is unknown(Greene & Goodman-Delahunty, 1995). At trial, plainti�s must show by objectiveor other evidence that they incurred compensable damages and that the damagesare linked to or related to the unlawful discrimination. Thus, jurors in these caseshear controverted and possibly complicated testimony about the causes of andresponsibility for various claimed injuries and must determine how to allocateblame among di�erent parties to the lawsuit. Once this task is complete, they musttranslate the agreed-upon losses into monetary terms, often with little guidancefrom the attorneys or the judge as to how these assessments should be made. A taskthat faces many juries in employment discrimination cases is determining whatmonetary compensation is rightfully due the aggrieved party; what amount ofmoney will compensate the plainti� for his or her losses.

In order to buttress their claims, injured parties frequently enlist the assistanceof economists or statisticians to devise a model that will calculate the ®nanciallosses sustained by that party. The model incorporates data from groups of peoplewho are claimed to be similar in certain key respects to the injured parties. Laboreconomists and statisticians then often testify to this information as expertwitnesses in the damages phase of an employment discrimination lawsuit.

1 In the employment context, compensatory damages can include sums to compensate the plainti� forpast and future pecuniary (out-of-pocket) losses related to the discrimination such as moving costs,doctors' bills, prescriptions, etc. and for nonpecuniary losses, e.g., for emotional injury, pain andsu�ering, etc. (Goodman-Dalahunty & Foote, 1995).2 Punitive damages typically include sums to punish the defendant for willful and wanton misconductand to deter the defendant and similar others from future misconduct.

108 E. Greene et al.

Copyright # 1999 John Wiley & Sons, Ltd. Behav. Sci. Law 17: 107±121 (1999)

In cases of alleged age discrimination or wrongful termination, for example, theeconomist or statistician will estimate the value of the person's future labor basedon statistics derived from groups of people in the same occupation and with thesame expected work life. They will also consider such factors as in¯ation andinterest rates, likely salary increases, and, in conjunction with data concerning anindividual's salary level and time to retirement, will determine the total value oflost earnings from the past and into the future. The economist will then discountthat amount to present value to re¯ect the investment capacity of the discounted®gure.

Because such model-building entails various assumptions and speculations,there is often controversy about whether the appropriate variables have beenconsidered and assumptions have been made. For example, di�ering assumptionsabout the amount and likelihood of future salary increases can result in widelydisparate assessments of lost earning capacity. Not surprisingly then, twoeconomists or statisticians can reach radically di�erent opinions about the presentvalue of lost income.

The Impact of Expert Economic Testimony

One purpose of the present study was to assess the in¯uence of this kind of experteconomic testimony on jurors' predeliberation sentiments and on jury verdictsregarding damages in an employment discrimination lawsuit. The question here iswhether jurors overvalue the apparent precision of statistical calculations andblindly rely on the economists' testimony, whether they are confused by it andtherefore underuse this evidence, or whether they accord it some more moderatevalue (Fienberg, 1989).

Some work (Raitz, Greene, Goodman & Loftus, 1990) has shown that experteconomic testimony has a signi®cant e�ect of jurors' decisions concerningdamages. In that study, nearly half of individual mock jurors delivered a verdicton damages that exactly matched the amount suggested by an expert.

Other work suggests that expert economic testimony may have only negligibleimpact, however. Vidmar and Schuller (1989) report considerable juror skepticismof expert testimony from economists and actuaries in medical malpractice cases.Diamond and Casper (1992) found that although an expert who provided acomplex statistical analysis in an antitrust case was perceived to be more pro®cientthan an expert who gave concrete or anecdotal information, he was also deemed lessconvincing because his model was less clear to jurors.

The study of Diamond and Casper (1992) presented two di�erent versions ofexpert testimony and measured the di�erential impact of this information onjurors' individual predeliberation damages assessments and on jury damageawards. Given this design, researchers were able to compare decisions in responseto the statistical and concrete/anecdotal approaches, but were unable to determinewhether jurors who hear expert economic testimony reason di�erently than thosewho do not.

The design of the present study allowed a direct comparison between (i) jurorswho heard expert economists describe their modeling assumptions and testify tothe results of that model in terms of a speci®c request for damages and (ii) jurors

Decisions about damages 109


who were required to make a determination of damages without exposure toexpert testimony. The latter group had award amounts suggested by attorneysrepresenting the parties in the lawsuit instead.

This comparison was chosen in part for its legal verisimilitude: attorneys areoften uncertain about whether to call an expert statistician or economist to testifybefore the jury, or whether instead to present damages evidence through theplainti� and in argument. An assessment of the di�erential impact of a presenta-tion by an expert versus a less sophisticated presentation by counsel will addressthis issue.

The E�ects of Suggested Damage Awardson Actual Damage Awards

Damage award determinations involve uncertainty. Cognitive psychologistssuggest that anchors (here in the form of suggestions made by attorneys) providea basis for simplifying judgments that involve uncertainty (see e.g., Tversky &Kahneman, 1974). Speci®cally, they suggest that an anchoring and adjustmentheuristic is invoked when a speci®c numerical value acts as an anchor for thatjudgment. If the anchor seems even remotely acceptable, individuals will adjusttheir judgment upward or downward from this initial value in a process calledassimilation. Hinsz and Indahl (1995) showed that caps on damage awards serve asanchors toward which jurors' verdicts are assimilated.

Some early jury-related work suggests that the ad damnum (the request fordamages made by attorneys) can also serve as an anchor toward which jurors'awards are assimilated. One study examined the e�ects of attorney requests fordamage awards and found that actual jurors used the request as a frame of referencefor their assessments (Broeder, 1954). Some mock jury research (Zuehl, 1982)varied the requests for damages made by the plainti�'s attorney: $10,000; $75,000;$150,000; or ``substantial compensation.'' Despite the fact that all jurors had thesame trial evidence, their damage awards were assimilated to these anchors. Themean awards in the ®rst three conditions were $18,000, $62,800, and $101,400,respectively. More recent work (Chapman & Bornstein, 1996) has shown that theamount of compensation requested by the plainti� in¯uenced judgments of theprobability that the defendant caused the plainti�'s injuries, perceptions of thelitigants, and the actual amount of compensation awarded.

In the absence of other advice, jurors apparently rely on the ®gures suggested bythe attorneys. On the other hand, jurors perceive attorneys as biased and aredistrustful of their motives (Greene, Goodman & Loftus, 1991). This sentimentmight militate against their unconditional acceptance of the attorneys' suggested®gures.

A second purpose of this study then was to examine the in¯uence of suggestedawards (the ad damnum) on actual awards. To address this issue, we compareddamage awards from (i) jurors who were given suggestions by attorneys about anappropriate award with (ii) jurors who were given no suggestions and who wererequired to make this award largely unaided by others. We wanted to know whetherjurors' damage award determinations would be assimilated to the numerical valuesuggested by the attorneys.



The In¯uence of Anchor Salience on Damage Awards

Markovsky (1988) argues that anchors can vary in salience and that the more salientthe anchor, (i.e., the more explicit its value, the greater its e�ect on a judgment).Because of its uniqueness3, economic expert testimony on behalf of the plainti� mayhave considerable salience to jurors and subsequent impact on their judgmentsconcerning damages. However, that salience may be reduced if the defense callsits own economist to testify. In this situation, economic evidence will be contro-versial, confusing, and no longer clearly explicit. As a result, it may ultimately beless impressive to jurors. Therefore, mock jurors may be less likely to assimilatetheir awards toward a suggested amount if two experts testify than if only oneexpert testi®es. Reasoning from Markovsky's work, we predict that there would beless movement toward an anchor when two experts testify than when one experttesti®es.

Another plausible expectation is that when exposed to con¯icting experteconomic testimony, jurors would tend to compromise on a ®gure that falls nearthe mid-range of the suggested amounts. Earlier work by Raitz et al. (1990)suggests that this is unlikely to happen, however.

To address these possibilities, we compared (i) jurors who heard one expert (aneconomist who testi®ed on behalf of the plainti�) and (ii) jurors who heard twoexperts (one economist who testi®ed for the plainti� and another who testi®ed forthe defendant). We wanted to know whether jurors would be less likely to endorsethe ®gure calculated and testi®ed to by the plainti�'s economist if they also heardexpert testimony from the defense.

Overview of Study

Participants in this study listened to excerpts of an audio taped lawsuit in which theplainti� claimed damages resulting from alleged age discrimination. Some mockjurors heard expert economic testimony from the plainti�'s expert who calculatedand testi®ed to the plainti�'s monetary losses (i.e., for lost wages and bene®ts),others heard both plainti� and defense expert economic testimony, and still othershad damage awards in the same amounts suggested by the attorneys, rather than byexpert economists. Finally, some jurors had no suggested ®gures and made theirdecisions largely unaided by testimony. We measured predeliberation individualawards as well as group verdicts.

A note of caution. The small number of juries in this study preclude ®ndingsigni®cant di�erences between conditions. At best, comparisons between groups ofjuries can provide evidence that favors one hypothesis over another.

3 If the plainti� calls an economist to testify, that economist is typically the only witness who calculatesan explicit monetary value of the losses sustained by the plainti�. As such, this testimony is signi®cantlydi�erent from testimony about the causes of and responsibility for the claimed wrongdoing as well astestimony about qualitative aspects of the plainti�'s losses.



METHOD

Participants

Jurors waiting to be called for voir dire at a local courthouse were invited toparticipate in the study. Four to six volunteers were recruited at one time. Jurorswere compensated for their time. If a study participant was called to serve on apanel for a real jury, his or her involvement in the study was terminated. In all,there were 122 participants in 22 juries.

Design

The study used a one-way between subjects design with four levels of damageaward presentation. In three conditions jurors were given explicit monetary awardrecommendations, and in one condition they were not. What varied in the condi-tions with award recommendations was the person(s) making those recommenda-tions. In all three conditions, attorneys made recommendations as part of theirclosing arguments. In one of these three conditions, no other suggestion was givenpertaining to damages. In the second of these three conditions, the award was alsocalculated and testi®ed to in relatively lengthy and complex economic experttestimony by the plainti�'s expert. In the third of these three conditions, jurorsalso heard expert economic testimony from both plainti� and defense experts.Speci®c details are given below.

Participants in the no experts/no recommendations condition (n � 33 indi-viduals in six juries) were not exposed to any expert witnesses or to any suggestedawards during closing arguments.

Participants in the no expert/attorney recommendations condition (n � 33individuals in six juries) did not hear expert testimony, but instead heard attorneysmake recommendations for monetary damages regarding lost wages and bene®tsin their closing arguments. The plainti�'s attorney requested $719,354 and thedefense attorney countered with an o�er of $321,000.

Participants in the one expert/attorney recommendations condition (n � 28individuals in ®ve juries) heard an expert economist testify on behalf of the plainti�about his assumptions and calculations that resulted in the $719,354 award to theplainti� for lost wages and bene®ts. In addition, the plainti�'s lawyer recom-mended this award in his closing argument. In that condition, the defense attorneysuggested $321,000 as an appropriate award in his closing argument.

Finally, participants in the two experts/attorney recommendations condition(n � 28 individuals in ®ve juries) heard testimony from two expertsÐa plainti�'sexpert who suggested the higher ®gure and a defendant's expert who suggestedthe lower. Both gave detailed explanations of their quantitative models. Theseparticipants also heard both attorneys endorse and recommend their expert's®gures during closing arguments.

Comparisons between the no expert/attorney recommendations group and theone expert/attorney recommendations group provide the cleanest test of the e�ectsof expert economic testimony on jurors' and juries' judgments. Recall that thesegroups had the same pro�ered awards. What di�ered was whether the suggestedaward came through testimony of an economist or by argument from a lawyer.



Comparisons between the no expert/attorney recommendations group and the noexpert/no recommendations groups allow us to assess the impact of suggesteddamage awards on actual damage awards. What distinguishes these two groups isthe fact that the former had an award suggested to them and the latter did not.

Finally, comparisons between the one expert group and the two experts groupallow us to examine how damage assessments are a�ected by con¯icting experttestimony and whether jurors with con¯icting requests will tend to compromisebetween the two extremes.

Materials

Mock jurors listened to an audio tape as they read a summary of evidence presentedin an age discrimination lawsuit in which a 54-year-old plainti� claimed that he wasunlawfully terminated from his mid-management position by his employer, agrocery store chain. In his opening statement (and again in a brief closing argu-ment), the plainti�'s attorney stated that his client had been receiving a salary of$62,000 at the time of his termination four years earlier, that he had not workedsince that time, that employment prospects were poor, and that his client hadsu�ered emotional distress caused by his lay-o�. In their opening statement andclosing argument, the defendants staunchly denied responsibility for these damages.

The summary included an introduction to uncontested facts, brief openingstatements and closing arguments by the plainti� and defendant, and whereappropriate, direct and cross examination of the relevant expert(s). The experttestimony included information relevant to the expert's quali®cations as well as adescription of the method that the expert(s) used to compute lost earnings andbene®ts and the result of those computations. In no condition were jurors givensuggested awards for the plainti�'s pain and su�ering. The summary was between1700 and 2500 words long, depending on the condition.

Mock jurors also read two pages of jury instructions that detailed (i) the elementsthey should consider in awarding damages, (ii) the burden of proof, (iii) theplainti�'s duty to mitigate damages, and (iv) procedures for deliberation. Thesummary also stated that earlier phases of the trial had established that thedefendant was liable for discrimination and that the plainti� was entitled torecovery of damages. We chose to present the evidence in this bifurcated fashion inorder to focus jurors on the speci®c task of determining the amount of money toaward the plainti� for lost wages and bene®ts and for pain and su�ering.

In addition to a jury verdict form, participants also received an individualpredeliberation questionnaire that asked for individual award preferences forboth types of damages and a rating of the credibility of the expert witness(es) whotesti®ed (on a Likert scale from 1 to 7 where 1 � no credibility).

Procedure

Before any participants could be enlisted on a given day, the jury commissionerdetermined that there were no trials set to commence that day that involvedallegations of employment discrimination. Following this precautionary measure,



volunteers were enlisted from among actual jurors awaiting jury selection. Mockjurors were escorted to an empty courtroom or jury deliberation room with theunderstanding that their research participation would be terminated if they werecalled for jury selection in an actual case. Four mock jurors were called away duringthe study. Their data are not included here.

Mock jurors signed a consent form, listened to and read the trial summary,and completed predeliberation questionnaires. When the questionnaires werecompleted, jurors were left to deliberate for up to 45 minutes or until they reacheda unanimous verdict. Their deliberations were videotaped. At the end of thedeliberations, jurors were debriefed, paid, and escorted back to the jury waitingroom.

RESULTS

Predeliberation Juror Awards

Across conditions, the individual predeliberation awards ranged from $0 to $967,000for lost wages and bene®ts and from $0 to $800,000 for pain and su�ering. A cursorylook at the modal juror predeliberation awards for lost wages and bene®ts suggeststhat some jurors assimilated their awards to an amount that was suggested to themduring the trial. The modal award was $321,000 (the amount suggested by thedefense), with approximately 17% of jurors choosing this number. The secondmostfrequently occurring award, endorsed by 15% of participants, was $719,000 (thenumber suggested by the plainti�). These ®ndings suggest that before deliberationsbegin, nearly a third of individual jurors assimilate their awards to the anchorssuggested by an economist or a lawyer during the trial.

We attempted to answer the questions about the impacts of economic testimony,suggested awards, and anchor salience by analyzing the mean predeliberationawards from individual jurors. Here, a di�erent pattern of results emerges.An analysis of variance on predeliberation awards for lost wages and bene®tswas marginally signi®cant, F(3, 118) � 2.31, p � .08. These awards are shown inTable 1. Jurors who heard only one expert gave signi®cantly higher awards forthese damages than did jurors with neither experts nor recommendations (by posthoc Sche�e test). An ANOVA on juror awards for pain and su�ering damages wasnot signi®cant.

Table 1. Mean juror predeliberation awards (in thousands of dollars) by condition

Condition Lost wages and bene®ts Pain and su�ering

No experts/no recommend. 433a 137No expert/atty recommend. 571 88One expert/atty recommend. 575b 81Two experts/atty recommend 463 109

Overall 511 104

Note: Means with superscripts di�er signi®cantly (by Sche�e's test).



What e�ect did expert economic testimony have on jurors' predeliberationsentiments? These data indicate that it had little, if any, e�ect. The mean juroraward in the no expert/attorney recommendation group was almost equivalent tothe award in the one expert/attorney recommendation group. Jurors apparently didnot overvalue or overuse the conclusions of the economist.

What e�ect did a suggested award have on the actual awards? Although the meanaward in the no expert/attorney recommendations group (M � $571 K) was greaterthan the mean award in the no experts/no recommendations group (M � $433 K),this di�erence was not signi®cant, suggesting that in this context, jurors' judg-ments about appropriate compensation were not in¯uenced by partisan suggestionsfrom the attorneys. Interestingly, the mean award from the no experts/no recom-mendations group was within the range de®ned by the plainti�'s request and thedefendant's o�er.

Finally, we compared the one expert condition with the two experts condition.In essence, this analysis also speaks to the impact of expert economic testimony. Ifthat testimony is persuasive, then the mean award from the two experts condition(where jurors heard expert economic testimony from the defense as well asthe plainti�) should be less than the mean award in the one expert condition(where only the plainti� presented expert economic testimony). Although themean awards were in this direction (one expert M � $575 K and two expertsM � $463 K), the di�erence was not signi®cant. In this study, the defense expertwas ine�ective at countering the plainti�'s expert and reducing jurors' awards.

Credibility Ratings of Expert Witnesses

An indirect way to measure the impact of economic expert testimony is to askjurors to rate the credibility of the expert economists. In the two conditions thatincluded expert testimony, mock jurors rated the credibility of these experts on ascale from 1 to 7 where 1 � not credible and 7 � extremely credible. Credibilityratings of the plainti�'s expert were generally positive when he was the sole expert(M � 5.19). However, his credibility rating decreased when the defendant also hadan expert (M � 4.51), F(1, 56) � 4.10, p5 .05. The mean credibility rating of thedefendant's expert in the two expert condition was 4.21.

Jury Awards

To ensure that jury verdicts were not in¯uenced by either jury size ( four, ®ve, orsix jurors per jury) or the length of deliberation (ranging from 21 to 47 minutes),one-way analyses of variance were conducted for both variables by award amounts.As there were no signi®cant di�erences in awards as a function of jury size ordeliberation length, jury verdicts were analyzed by condition, disregarding size andlength di�erences. Because of the small cell frequencies, we could not conductinferential statistical tests. Accordingly, we note only trends and interpret these®ndings cautiously.

Two award amounts were recorded: (i) an award for lost wages and bene®ts and(ii) an award for pain and su�ering. Across the four conditions, jury awards ranged



from $248,000 to $900,000 for lost wages and bene®ts and $0 to $573,000 for painand su�ering.

Modal Jury Awards

The modal award across all conditions for lost wages and bene®ts was $682,000,with four of the 22 juries arriving at this amount. (This amount is the product ofthe plainti�'s annual salary at the time of termination ($62,000) and the elevenyears of employment he would have had to age 65.) All of these juries were in theNo Experts/No Recommendations condition. This ®nding suggests that withoutrecommendations, at least some juries perform fairly simple calculations to arrive ata compensatory damage award.

Three of the 22 juries (all in the one expert condition) awarded $719,000Ðtheamount suggested by the plainti�'s expert economist. These ®ndings suggest thatsome juries apparently assimilate their verdict to the anchor o�ered during thetrial. Note however that juries with attorney recommendations were apparently lesslikely than juries with expert recommendations to assimilate their awards to thesuggested ®gure. The modal award for pain and su�ering was $0.

Mean Jury Awards

Mean jury awards for lost wages and bene®ts and for pain and su�ering are shownby condition in Table 2. Several trends are worth noting. First, juries who heardtestimony from the plainti�'s expert economist awarded more than did juries whoheard the same ®gure argued by the plainti�'s attorney. Second, the partisanrequest by the plainti�'s lawyer apparently fell on deaf ears: the award in thiscondition was close to the award from the condition without a request. Third, aswith the juror awards, we note that the mean jury award in the two expertscondition was lower than the mean in the one expert condition. In fact, the meanjury award in this condition ($529,000) is midway between the extremes suggestedby the opposing experts.

Content of Jury Deliberations

Videotaped deliberations were viewed and coded by two raters who initiallyworked independently. Their objective was to determine the impact of experteconomic testimony on the juries' judgments. To do so, they counted instances

Table 2. Mean jury awards (in thousands of dollars) by condition

Condition Lost wages and bene®ts Pain and su�ering

No experts/no recommend. 520 120No expert/atty recommend. 566 10One expert/atty. recommend. 719 79Two experts/atty recommend. 529 150

Overall 583 90



where the experts' suggested damages awards were mentioned, as well asthe number of times that the juries referred to details of the experts' testimony(e.g., both experts made assumptions about in¯ation levels and the plainti�'sexpected work life). Other details were noted as well, including the plainti�'sconsumption levels, his age, salary at termination, investment potential of theaward, taxability of award, and compensation for lost wages and bene®ts,regardless of whether jurors heard expert economic testimony. We were interestedin determining whether jurors who heard expert economic testimony were morelikely than other jurors to discuss these details during deliberations.

The mean of the two coders' scores for each category was calculated for eachjury. Inter-rater reliabilities were computed for each of ten categories coded.Correlations ranged from .42 to .99, with 80% of correlations being .7 or greater.We then calculated the mean score for all juries in a given condition and comparedthose to the means of other conditions. Because the frequencies in some categorieswere low (e.g., jurors without access to suggested ®gures would obviously notdiscuss these concepts during deliberation), the following analysis is descriptiverather than statistical.

By these computations, there were apparent di�erences in the frequency withwhich jurors discussed the ®gures suggested during the trial. For example, theplainti�'s suggested ®gure was discussed an average of 2.60 times per deliberationin the one expert condition, as compared to 4.60 times per deliberation in the twoexperts condition and only .33 times when the ®gures were simply requested bycounsel. The defendant's suggested award was mentioned an average of only onceper jury in the one expert condition but was discussed an average of 2.67 times inthe two expert condition. That ®gure was never mentioned in the conditionswithout expert testimony. These ®ndings tentatively suggest that jurors are morelikely to discuss requested monetary damage awards when the o�ers come fromexperts rather than from attorneys and that the suggested awards are discussedmore often when there are two experts than when there is only one.

Surprisingly, the issue of pain and su�ering was also discussed more frequentlyin the groups with expert testimony. This was true even though the experts'testimony did not include any calculations of, or recommendations for this award.This issue arose an average of 14.20 times when there was one expert, 12.33 timeswhen there were two experts, 7.33 times when the awards were simply recom-mended by attorneys, and only 4.17 times in the condition with neither experts norrecommended awards. These data suggest that the experts apparently focus jurors'discussion on assessments of pain and su�ering damages even when they o�er noconcrete yardstick by which to measure those damages. Di�erences in thefrequency of discussion of other issues across conditions were negligible.

To gain a rudimentary understanding of the process by which the juries reachedtheir verdicts, we asked the coders to view each deliberation for a second time andto determine the predominate means of decision making regarding damages for lostwages and bene®ts. This time, the coders watched the tapes together and came toagreement using these eight categories: (i) the mean of individual awards wasselected as the group award; (ii) the median was selected; (iii) the mode wasselected; (iv) the central tendency was determined and the award was adjustedupward; (v) the central tendency was determined and the award was adjusteddownward; (vi) extreme awards were discarded and the midpoint of remaining



awards was selected; (vii) extreme awards only were averaged; and (viii) an awardwas selected without computation.

The most common method of determining a verdict was to rely on the mode ofindividual responses. Five of the 22 juries (23%) relied on this method. (Four ofthe ®ve were in the no experts/no recommendations condition and one was in theno experts/attorney recommendation condition.) Only two juries reached an awardwithout doing any computations (these groups were in the no experts/attorneyrecommendations condition). Other juries reached their verdicts on lost wages andbene®ts by using a variety of the other methods. This analysis suggests that jurieswith exposure to expert economic testimony may carry out somewhat moresophisticated decision making (i.e., determining a central tendency and thenadjusting the award, dealing with extreme awards, etc.) than jurors without experttestimony.

DISCUSSION

One purpose of the present study was to determine the impact of expert economictestimony on decisions about damages. To address this question, we comparedawards from jurors who were exposed to the plainti�'s expert economist withawards given by jurors who heard a request for damages made by the plainti�'slawyer instead.

We found no e�ect of expert economic testimony on jurors' predeliberationawards and some hint of an e�ect on jury awards. In terms of individual awards,the mean award in the one expert/attorney recommendation group was notdi�erent from the mean in the no expert/attorney recommendation group.

In terms of the group verdicts, we noted that three of the ®ve juries in the oneexpert condition assimilated their awards to the amount suggested by the experteconomist. In fact, these three groups awarded $719,000, the exact amountadvocated by the plainti�'s expert. We also found that the mean jury award in theone expert condition was $150,000 greater than the mean award in the no expertcondition. We consider these ®ndings to be preliminary; at the level of jurydecisions, apparent di�erences between conditions may not be statistically reliableand the apparent lack of di�erence in some comparisons may, with a larger sample,become statistically signi®cant.

A second purpose of the present study was to evaluate the impact of suggesteddamage awards on actual awards. Here, we compared awards from jurors whoheard attorney requests with awards from jurors who did not. Findings from otherstudies led us to hypothesize that jurors would assimilate their awards to the anchorsuggested by the attorney. Although the individual predeliberation awards were inthe predicted direction (i.e., the mean award given by jurors without a speci®crequest was 60% of the ad damnum whereas the mean award given by jurors whoheard the request was 79% of that suggested amount), this di�erence was notsigni®cant. Individual jurors were apparently not likely to assimilate their awardsto the amounts suggested by attorneys.

Were jury awards a�ected by the attorney's suggested ®gure? Apparently not.The mean jury award in the no expert/attorney recommendations condition was



not much greater than the mean award in the no expert/no recommendationscondition. We also found that jurors with attorney recommendations were notlikely to discuss these suggested amounts during deliberations.

As an aside, we note that the award request may have in¯uenced the way thatjuries reasoned about an appropriate damage award even if it did not a�ect theresult of that reasoning. In particular, we found that four of the six juries in the noexpert/no recommendations condition apparently decided on their award bycalculating the product of the plainti�'s salary and his expected work life (to age65). No jury with a suggested ®gure reasoned in this manner. Keeping in mind thecautions noted above about the small number of juries, we suspect that the verypresence of an ad damnum (suggested award) may cause jurors to discuss thedamages issue in a more complex and discerning fashion during their deliberations,even if that ad damnum was not mentioned explicitly.

The third and ®nal issue we addressed was the di�erential impact on jurors ofone versus two expert economists. If expert economic testimony was persuasive,then the mean award in the two experts condition would have been less than themean in the one expert condition. Although the mean individual predeliberationawards were in this direction, the di�erence was not signi®cant. Findings from thegroup-level data parallel the individual awards: the mean jury award in the TwoExperts condition was 74% of the mean award in the One Expert condition.

We suggested that the presence of a defense expert economist would render theplainti�'s economic testimony less salient than if it had been presented alone.Accordingly, jurors would be less likely to rely on the ®gures put forth by theplainti�'s economist in the two experts condition than in the one expert condition.There is some support for that hypothesis. The mean jury award in the two expertscondition ($529,000) may be a result of jurors disregarding the ``battle of theexperts'', discounting the economic expert testimony entirely and relying insteadon their intuitive senses of a reasonable award. The mean jury award may be acompromise at the midpoint between the amount requested by the plainti� and theamount countered by the defendant.

So what e�ect does the battle of economic experts have on jurors' and juries'decisions regarding damages? According to our data, the presence of defense experttestimony does not signi®cantly reduce the size of the plainti�'s award forindividual jurors. It may change the texture of the deliberations, however. Forexample, there was more discussion of both the plainti�'s requested award and thedefendant's o�ered award in the two experts condition than in the one expertcondition. One e�ect of con¯icting expert testimony was apparently to increasediscussion of the countervailing presentations and to attempt to reconcile thecon¯icting evidence.

At ®rst glance, our ®ndings seem counter to those of Raitz et al. (1990), whofound that monetary awards were signi®cantly higher when expert economiststesti®ed. In fact, our data parallel their data. They concluded that expert economictestimony in¯uenced juror damage awards by comparing mean awards from theconditions that involved expert4 testimony and a condition with neither experts norrecommendations. As noted in Table 1, we too found a marginally signi®cantdi�erence between the one expert/attorney recommendation condition and the no

4 We thank an anonymous reviewer for this suggestion.



expert/no recommendation condition. However, that comparison confounds thee�ects of expert testimony and the e�ects of the ad damnum. We believe that abetter test of the in¯uence of expert testimony involves comparison between a noexpert/attorney recommendation condition and a one expert/attorney recommen-dation condition. Here, the impact of expert testimony was negligible.

We can also explain our ®ndings in light of the work of Chapman and Bornstein(1996) who showed that monetary anchors in¯uenced compensation judgments.Our data showed no e�ect of attorney requests on awarded damages. We suspectthat this inconsistency can be attributed to two di�erences between our studies.First, in our study, all jurors had evidence related to the plainti�'s ®nancial losses(e.g., his salary at termination and his years to retirement) whereas the participantsof Chapman and Bornstein had none. The ad damnum may loom larger when it isthe only economic yardstick that jurors can use. Second, whereas the damagesrequested in our study were intended to compensate the plainti� for his economiclosses, the participants of Chapman and Bornstein were asked to compensate theplainti� only for her pain and su�ering. Because the cost of pain and su�ering isconsiderably more di�cult to quantify, jurors may be more likely to rely on theamount suggested to them by the parties. The impact of an ad damnum isapparently dependent on the particular damages-related task required of jurors.We acknowledge that, unlike Chapman and Bornstein, we did not ®nd cross-modality e�ects (i.e., the ad damnum related to economic damages did not a�ectnoneconomic awards).

In addition to the concerns about small sample size, we note other issues relatedto the generalizability of these data. Mock jurors in this study were not givenunlimited time to deliberate. As a result, their verdicts may have been somewhatmore re¯ective of expert input than would be true in an actual case where there areno formally imposed time limitations on deliberations. However, actual jurorsimpose their own, self-generated restrictions on how much time they will spend ondamages and, because these decisions almost always follow the decisions aboutliability, jurors' fervor and commitment to the task may begin to wane just asdamages are to be discussed.

Because we told jurors that liability had previously been determined in theplainti�'s favor, we were unable to assess some more complicated ways that jurorsmay compromise on damages. For example, if jurors are not in agreement aboutliability, the damages ®gure can become the barter that eventually allows themajority viewpoint on liability to accommodate the views of the minority. Still, our®ndings merit consideration for other reasons related to external validity: data camefrom actual jurors who deliberated as a jury. So although both the evidencepresentation and the jury deliberations were condensed, the procedures we usedmimic actual judicial proceedings in most important respects.

In sum, then, it appears as though the e�ects of expert economic testimony ondecisions about damages may be subtle and may be more prominent at the level ofjury decisions than juror sentiments. The e�ects of suggested awards on actualawards are more clear: attorney requests for compensation related to economiclosses fall on deaf ears. Jury awards may be reduced when the defense presents itsown expert economic testimony, although this variable may also a�ect jurors andjuries di�erently. Finally and most importantly, we underscore the fact that these®ndings are tentative and are worthy of further research and con®rmation.



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Unpublished manuscript, University of Chicago.



Juror decisions about damages in employment discrimination cases

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