Columbia Law Review
How does jury deliberation affect the predeliberation judgments of individual jurors? In this paper we make progress on that question by reporting the results of a study of over 500 mock juries composed of over 3000 jury eligible citizens. Our principal finding is that with respect to dollars, deliberation produces a "severity shift," in which the jury's dollar verdict is systematically higher than that of the median of its jurors' predeliberation judgments. A "deliberation shift analysis" is introduced to measure the effect of deliberation. The severity shift is attributed to a "rhetorical asymmetry," in which arguments for higher awards are more persuasive than arguments for lower awards. When judgments are measured not in terms of dollars but on a rating scale of punishment severity, deliberation increased high ratings and decreased low ratings. We also find that deliberation does not alleviate the problem of erratic and unpredictable individual dollar awards, but in fact exacerbates it. Implications for punitive damage awards and deliberation generally are discussed.
Cass R. Sunstein, Daniel Kahneman & David Schkade, "Deliberating about Dollars: The Severity Shift Empirical Study," 100 Columbia Law Review 1139 (2000).