“Hedonic Damages and Other Special Economic Issues”
Stan discusses how to turn speculative issues into tangible, economic information the jury can consider.
The judge listened to and read the brief system and after about an hour, he came back and said, “This is a brain damage case.” He said, “I’ve been on this bench fourteen years and one month, and I’ve had to give two instructions to the jury. Number one: You must base your damage award on the evidence. Number two: your award damages dollar amount cannot be speculative.”
And then he goes on for fourteen pages saying that I’ve basically been telling them a bunch of horse ****, because there’s never been any evidence. And I tell them to base it on the evidence, so in effect, I’m lying to them or I’m telling them to do something they cannot do. And then I’m telling them to make it not speculative, when in fact because there’s no evidence, it can only be speculative.
And he says, “now, we have something that may not be the best thing since sliced bread, but it is something for them to listen to.” And they know this man is an economist and these aren’t the ten commandments coming down from the mountain. It is something for them to hear, something for them to understand, something to help them triangulate on this intangible issue that they can wrap their minds around. That they can give it the weight they want, they can accept it, reject it, you know.
It’s not hard science like physics, and yes, you cannot replicate these experiments over time, but we have economic information that now the jury has some evidence to base their reward on. And if they come up with an award, it is now less likely that to be speculative because there has been some information that they can hear.