There is one topic that nearly always comes up in mock trial discussions: the McDonald’s hot coffee case. It can be a circumstance as distinct as a patent case, and at least one juror will somehow find a connection. When the discussion turns to damages — and especially punitive damages — there is another topic that makes an appearance nearly every time: the question, “Where does the money go?” One juror in a real trial took that a little too far recently. During deliberations in a sexual harassment trial, St. Louis juror Kevin Hink used his phone to ask Google, “Where do punitive damages go?” Wikipedia was ready with an answer: The plaintiff would receive “all or some portion” of it. Apparently, this jury was happy with that answer, because they then awarded her $7.2 million, an amount that naturally is now in jeopardy.

Juror curiosity is natural. But this frequent question about the use of damages money reflects a broader issue with the way jurors think about their awards. Technically, of course, they are just answering a question that the law poses. In practice, however, jurors are more likely to see themselves as taking an action. That action is taken under the color of law, but the effect is to accomplish something for the plaintiff or for society. When damages are viewed as an action and not as an answer, jurors’ questions make more sense. Obviously, it is not always possible for litigators to address these questions without objection. But by keeping these questions in mind, and addressing them where possible, litigators on both sides are able to present jurors with a more complete picture, and that makes for better persuasion.

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