How to Keep Damage -Award Jurors From Going Wild

Interest groups pushing for tort reform cite “million-dollar verdicts” as the main cause of rising insurance rates for doctors, child-care centers and municipalities. In state legislatures and in Congress, with President Reagan’s support, these groups are backing bills that would cap compensation for pain and suffering in personal-injury cases and would limit lawyers’ contingent fees.

Such proposals are misdirected. In the hundreds of negligence, malpractice and product-liability cases that I have heard in my 10 years as a judge, I’ve never had a million-dollar verdict. And in a rich state like Connecticut there are only one or two a year.

However, reform groups are right to focus on jury damage awards as the flawed feature of the tort system. Many times such awards reflect common sense. But they are always unpredictable, often erratic and occasionally irrational. While trials are conducted with rigorous adherence to rules of evidence and principles of law, the damages that juries hand out are as random as lottery numbers.

Why? The answer lies in three key characteristics of our jury system:

First, jurors are likely to decide only one case in their lives. Thus they are not only amateurs; they are neophytes when it comes to understanding complicated and often conflicting testimony of doctors and putting a monetary value on injuries.

Second, jurors get no meaningful help from the judge on the amount that they should award. After the judge tells them that the plaintiff may be reimbursed for his medical expenses and loss of earnings, he says that for pain, suffering and disability, now and into the future, the plaintiff is entitled to “fair, just and reasonable compensation.” The judge adds that there is no mathematical formula; jurors must use their best judgment in arriving at what in dollars represents “fair, just and reasonable compensation.” Repeating that phrase does not provide more guidance.

Third, jurors are never informed about what the plaintiff really wants and what the defendant, usually an insurance company, is willing to pay. Thus they are forced to act as blindly as a purchaser trying to put a value on a new car without knowing the dealer’s price.

The judge has elicited those figures, before and during the trial, in his efforts to get the lawyers to settle. The plaintiff’s demand and the defendant’s offer stated in those negotiations define the parties’ conceptions of the true worth of the case. The jury, not being apprised of those figures, often renders verdicts outside those bounds.

How should the trial of personal-injury cases be reformed? Apart from the superficial legislative measures mentioned above, some serious thinkers suggest eliminating pain and suffering as an element of damages; others suggest establishing a fixed schedule of payment for each category of injury under the workers’ compensation law.

I propose keeping our basic system of juries deciding the full measure of plaintiffs’ damages, including pain and suffering, but requiring juries to operate under the method of last-best-offer, used successfully in the arbitration of wage-rate disputes.

The jury would hear and decide first the question of liability--that is, whether or not the defendant was at fault and, when the doctrine of comparative negligence is applied, the extent to which the plaintiff’s own fault contributed to the accident.

If there were no settlement after the jury decided liability for the plaintiff, the trial would immediately continue on the matter of damages. After all that evidence was in, the judge would solicit in chambers--first from the plaintiff’s attorney and then from the defendant’s attorney--the amount of damages that each believed the plaintiff was entitled to on the basis of evidence established. Each lawyer could change his figure in light of the other’s, until both arrived at final amounts that they were willing to stand on. Those amounts would be submitted to the jury, and the jury could choose only one or the other.

If the jury were allowed to pick a number in between, the plaintiff’s lawyer would submit a very low amount. But when the jury must choose only one, each attorney would be motivated to submit a final amount representing his notion of the fairest possible award in order to earn the jury’s vote.

Judicial instructions on “fair, just and reasonable compensation” would then have specific meaning to the jurors, because the judge would also inform them of the amount that each party believed was “fair, just and reasonable.”

Mandatory application of this method of determining damages would necessitate new statutes. But, with a judge’s encouragement, parties could agree to it voluntarily. Both sides would gain. Both would be spared a jury’s wild surmise. Damage awards would fulfill the reasonable expectation of one party and be close to that of the other. Awards would thus be less erratic, more rational and more predictable.

The result would be not only to moderate insurance rates but, even more important, also to restore an aura of justice to the tort system.