Only 3 States are Honest With Their Jurors?

....and then the juror said, "there was a cap on damages??" 

Only three states - Massachusetts, West Virginia, and Wisconsin - tell juries that there is a cap on non-economic damages in civil cases. Although most states have enacted this rule, most state courts allow juries to deliberate and decide what damages the plaintiff is owed without any indication that there is an upper limit to the amount they may award. If their verdict is higher than the damages cap within that jurisdiction, the judge will decrease the damages in order to keep damages within the proper legislative range. 

Essentially, courts that do not disclose damages cap ask the jury to carefully decide an award. In their head, the judge is thinking: 

Why is this important? 

Well, sociologists studying juror behavior have concluded that the disclosure of a damages cap effects the way jurors assess damages. More specifically, when jurors are made aware of the damage cap, they adjust their final amount to the proper range permitted by the cap (Michael J. Saks's study). Meaning that in cases concerning minimal injuries, jurors would increase the size of damages to meet the cap, while cases dealing with major injuries would cause jurors to reduce their size of damages to meet the cap. The main focus of Michael J. Saks's study concerned "anchoring bias" - which described people's tendencies to rely heavily on a piece of information (here, the damages cap) to make their decisions. Furthermore, the way the information itself is disclosed to the jury can affect their actions and deliberation process. In conclusion, this study showed that awards were lower when the damages cap was disclosed to the jury as a "limit" compared to when they were stated as a mere "recommendation." 

Interestingly, jurors tend to compensate for a damage cap in one area (such as a limit on non-economic damages), by increasing the damage award for an area which is unlimited. Does this defeat the purpose of having a cap? It appears so. In Sasaki v. Class, the Fourth Circuit found that, after the jury was notified of the damages cap, there was a "strong reason to believe" that the jury attempted to make the plaintiff whole by simply awarding more damages for the counts that were uncapped. Professor Catherine Sharkey of NYU Law labels this the "crossover effect." 

This is the cross-over effect in-action: 

We talk about jurors being the ultimate fact finders. They are supposed to be fair, only using the evidence admitted by the judge. But then why do we keep the damages cap from them? I would argue that keeping this disclosure private would allow us to see what a jury would truly allocate to the plaintiff based on the facts of the case. When telling them the legal limitation, they will likely follow the rules. But without it, they will take time to carefully decide what amount is fair. The psychology behind the way jurors use the information regarding a damages award is fascinating - changing the way jurors behave with every accompanying word and instruction. While there is strong debate about whether caps on damages should be allowed at all, the way the limitation is communicated to the jury is another prong that must be considered by legislation in order to determine if and how the damages cap should be executed.