Dateline: April, 2007, Issue 2

How do deliberations affect the size of punitive damage awards?

Deliberations often lead to larger punitive awards than what jurors would award individually.

Schkade and colleagues (2002) examined the size of punitive damage awards, finding that a "severity shift" occurs in deliberations. That is, the jury's dollar verdict is typically higher, and often far higher, than the median judgment of the same jury's individual members before deliberations. Among juries that award punitive damages, 83% were higher than the average amount jurors awarded pre-deliberations, and 27% reached dollar verdicts that were as high as or higher than the highest individual pre-deliberation amount. Jurors arguing for higher dollar awards have a rhetorical advantage over jurors arguing for lower dollar awards. Jurors believe that arguing for a lower award is rhetorically more difficult than arguing for a higher award.

Defense attorneys are advised to arm jurors rhetorically with reasons to avoid the "severity shift." Plaintiff attorneys are advised to arm jurors rhetorically with reasons to choose higher, rather than lower, amounts under consideration.

Source Schkade, D. A., Sunstein, C. R., & Kahneman, D. (2002). Deliberating about dollars: The severity shift. In C. R. Sunstein, R. Hastie, J. W. Payne, D. A. Schkade, & W. K. Viscusi (Eds.), Punitive damages: How juries decide (pp. 43-61). Chicago, IL: University of Chicago Press.