Dateline: February, 2011, Issue 2

Do jurors discuss attorneys' fees when awarding damages?

Civil trials usually prohibit discussion of, and so are silent about, payment of attorneys' fees by litigants.

Silence about attorneys' fees is not equivalent to jurors being unaware of them. Research shows that jurors are aware of contingent fee arrangements despite nothing being said about them. For example:

Research also finds that jurors frequently discuss attorneys' fees in deliberations, and sometimes take these fees into account in determining damage awards. For example:

In sum, most jurors are aware of attorneys' fees, and these fees are often discussed during deliberations. While discussion of attorneys' fees sometimes has little effect on damage awards, other times juries augment damage awards to offset those fees.

Source Guinther, J. (1988). The jury in America. New York: Roscoe Pound Foundation.

Source Goodman , J., Greene, E., & Loftus, E. (1989). Runaway verdicts or reasoned determinations: Mock juror strategies in awarding damages. Jurimetrics Journal, 29, pp. 285-309.

Source Diamond, S. & Vidmar, N. (2001). Jury room ruminations on forbidden topics. Virginia Law Review, 87, pp. 1857-1915.

Source Mott, N., Hans, V. & Simpson, L. (2000). What's half a lung worth? Civil jurors' accounts of their award decision making. Law and Human Behavior, 24, pp. 401-419.

Source Raitz, A., Greene, E., Goodman, J. & Loftus, E. (1990). Determining damages: The influence of expert testimony on jurors' decision making. Law and Human Behavior, 14, pp. 385-395.

Source Greene, E., Hayman, K. & Motyl, M. (2008). "Shouldn't we consider….?": Jury discussions of forbidden topics and effects on damage awards. Psychology, Public Policy and Law, 14, pp. 194-222.