Charity and the American Jury: Exploring the Relationship Between Plaintiffs Need-Based Arguments and Juror Verdicts in Medical Malpractice Suits

Argument plays a fundamental role in the legal process. Scholars exploring the interconnection between argument and law have examined the forms of reasoning in legal argument (Newell & Rieke, 1986; Sheppard & Rieke, 1983), the patriarchal nature of legal argument (Crenshaw, 1996), the role of "social knowledge" in the construction of legal argument (Hollihan, Riley, & Freadhoff, 1986), and the appropriate number of arguments at trial (Calder, Inkso, & Yandell, 1974). In line with this tradition, the present essay explores the impact of one form of legal argument, plaintiffs' need-based arguments. Such arguments highlight a plaintiff's need for a monetary award in civil litigation; they reveal to the jury that the plaintiff has significant, unmet material needs. Such need-based arguments are of particular import in our legal process because they are closely associated with one of the recurring criticisms of American civil juries-that jurors commonly make decisions based on sympathy for needy plaintiffs rather than adherence to the law. Offering one such criticism in his famous indictment of the jury system, Peter Huber (1988) argues that juries have turned the legal system into a "charity" program (p. 12) where "the only human re action to the individual [plaintiff] tragedy ... is unbounded generosity, which any large corporation or insurer can surely afford to underwrite" (p. 185). Judges, lawyers, and legal commentators continue to believe that jurors naturally favor downtrodden plaintiffs over prosperous defendants (Clermont & Eisenberg, 1992; Daniels & Martin, 1986; Hans, 1992; Hans & Lofquist, 1992). This viewpoint helps explain why "it is a commonplace belief among trial lawyers that, especially in personal injury cases, appeals to sympathy help to win cases" (Hans & Vidmar, 1986, p. 136) and why lawyers pursuing such lawsuits overwhelmingly opt for jury trials (Clermont & Eisenberg, 1992). If jurors in civil cases base their decisions on plaintiffs' needs and defendants' resources, then plaintiffs' cases should generally benefit from the incorporation of need-based arguments. Following this same line of reasoning, plaintiffs' cases should benefit more from strong need-based arguments (those which depict a plaintiff in dire circumstances) than from weak need-based arguments (those which depict a plaintiff with few material needs). Under the dictates of tort law, such need-based factors constitute an extra-legal consideration; need should not determine who is at fault for an injury, and damages are to be determined based on loss rather than need. If need-based arguments, which essentially highlight an extra-legal factor, do have a considerable effect upon jurors, then tort reform efforts might benefit from finding meaningful ways to constrain such arguments. Thus, this study explores the effect of need-based arguments and associated variables on mock-jurors' assignments of fault and damages. REVIEW OF THE LITERATURE Does existing theory and research demonstrate such effects from need-based arguments? Unfortunately, existing scholarship has not specifically addressed this question. This oversight is consistent with the vast majority of social scientific legal research, which has focused largely on criminal cases at the expense of civil litigation (Abbott, Hall, & Linville, 1993; Hans, 1992; MacCoun, 1993). While existing research has not attempted to assess how plaintiffs' need-based arguments shape tort decisions, some extant scholarship indirectly sheds light on this relationship. In its totality, this research presents a very mixed picture. Need Blalock (1991) notes that the need principle "constitutes a justice criterion stressed in the Judeo-Christian tradition" as well as in other religions which emphasize charitable obligations (p. 209). Some scholarship suggests that such a need-based principle could sway jurors in favor of poorer plaintiffs. …