How the Jury "Calculates" Your Personal Injury Award

If your personal injury lawsuit doesn't get settled and makes it through a trial, it's up to the jury to determine how much you should get paid. Here's how it works.

How does a jury come up with its award when a personal injury lawsuit goes to trial? What goes on in the deliberation room? In order to make its decision, the jurors have to review the evidence that was presented in the trial, and consider the law that applies to the case. Read on to learn more about the jury deliberation and award process.

Reviewing the Evidence in an Injury Case

Most jurors pay reasonably close attention to the evidence during the trial. Most courts now allow jurors to take notes during the trial.

But when they begin their deliberations in the jury room after the trial, jurors will usually review the evidence quite closely with each other. They cannot have a transcript of the testimony; they must rely on their memories and their notes, but they are allowed to have all of the trial exhibits with them. They will usually discuss the evidence until they are all satisfied that they have a good handle on how the accident happened.

In an easy case, that could take less than an hour, but, in a more complex case, that could take days. After they have figured out the facts, the jurors will turn to the law.

Applying the Law: Jury Instructions vs. Emotional Appeal

Judges give juries lengthy jury instructions. They generally give these instructions at the end of the trial, but some judges give some of the instructions at the beginning or in the middle of the trial. All judges give their instructions orally, but many judges now also give a copy of the instructions to the jurors in writing.

The instructions cover every aspect of the jury’s deliberations. They explain how the jurors should deliberate, how they should analyze the witnesses and the evidence, and then explain the law of the case in detail.

The judge will explain the law of negligence in general, and then discuss the specific laws that apply to that trial. If, for example, the trial was a car accident that occurred at an intersection with a four way stop sign, the judge will instruct the jury on the law of stop signs, and which driver has the right of way.

Most significantly, judges will instruct jurors that they must make their decision strictly according to the law. They must apply the law as it is given to them, even if they don’t agree with the law, and they must not be swayed by emotion. This is a fundamental principle of our jury system. Appellate courts, in reviewing jury verdicts, assume that the jurors indeed applied the law as the trial judge explained it to them, and assume that the jurors applied the law to the facts in a relatively unemotional manner.

Nevertheless, human nature tells us that jurors will follow their hearts, at least a little (and sometimes a lot), in considering the evidence at a trial and especially in personal injury trials. Jurors will apply common sense to their verdict and will be swayed by human nature. Plaintiffs’ lawyers know that, and know that, if their case contains a strong emotional appeal to the jury, they have a better chance of winning.

What Creates an Emotional Appeal to the Jury?

The following types of evidence almost always helps create an emotional appeal to the jury:

  • a serious, permanent injury (juries will award more money for a devastating permanent injury like paralysis than for a wrongful death case)
  • an injury to a child
  • pictures (but not too many pictures) of the injury
  • proof that the defendant or the defendant’s witnesses lied about how the accident happened, or that they tried to cover up how their negligence caused the injury, and
  • a nice, pleasant plaintiff with a good family

Defense attorneys do not like trying cases with strong emotional appeals because they know that juries can (and will) be swayed by such appeals and will often give large awards.

How Do Jurors Decide Pain and Suffering?

That is the big question. It is easy for juries to decide medical bills and lost earnings because they are damages that can be calculated. But how do you calculate someone else's pain and suffering? It's a tough task, made even harder because the judge’s instructions to the jury typically do not go into too much detail about how the jury should determine damages for pain and suffering.

Many judges do not say too much more about pain and suffering other than the jurors must use their own good sense, background, and experience in determining what would be a fair and reasonable figure to compensate the plaintiff for pain and suffering. And this is what the jurors will do. They will think about how they would like it if someone negligently did to them what the defendant did to the plaintiff. They will think about how much money they would want if they had the same injuries as the plaintiff. Then they will arrive at a consensus among themselves, and that will be their verdict.

In this context, it's no wonder both parties in a personal injury case often prefer to settle out of court. Leaving the final decision on compensation in the hands of a jury is a risky bet.

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