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:
- In a 1988 study by Guinther, 84% of jurors knew that plaintiffs usually pay a percentage of an award to their attorneys despite nothing being said during trial about attorneys' fees.
- In another study by Goodman and colleagues in 1989, 20% of jurors in mock trial research in a wrongful death case said that they considered that attorneys' fees would need to be paid.
- In a 2001 study by Diamond and Vidmar, many jurors were also aware of contingency fee arrangements that lawyers make with plaintiffs.
Research also finds that jurors frequently discuss attorneys' fees in deliberations, and sometimes take these fees into account in determining damage awards. For example:
- Mott and colleagues (2000) conducted post-trial interviews with 269 jurors from 36 different cases involving at least one business or corporate party. An overwhelming majority (85%) of jurors reported discussing attorneys' fees during their deliberations, and 44% said the discussions influenced their damage awards.
- Diamond and Vidmar (2001) analyzed videotaped jury discussions and deliberations from actual trials as part of the Arizona Jury Project and found that attorneys' fees were discussed in 83% of the cases, although the comments were generally brief and perfunctory. Deliberations occurred where jurors explicitly justified a higher award because of a plaintiff's attorney fee.
- Raitz and colleagues (1990) found that mock jurors who thought attorneys' fees were an important factor in assessments of damages reported raising their awards to offset payment to the attorney, even if not discussed in deliberations.
- Greene and colleagues (2008) studied 56 mock juries deliberating an automobile negligence case, and found that 48% discussed attorneys' fees. Juries hearing about mild injuries discussed attorneys' fees more often than juries hearing about severe injuries. A large percentage of the statements about attorneys' fees argued for increasing the amount of the award to cover these fees. The amount of discussion about attorneys' fees was unrelated to the amount of damages awarded.
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.