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40 U.C. Davis Law Review 137 (2006)


Arguing from the premise that personal injury plaintiffs and injury evidence do not taint proceedings by encouraging jurors to adjudicate based on emotion rather than evidence, this article reviews and challenges judicial attempts to constrain jurors' emotive responses to an injured plaintiff in three areas of personal injury litigation: voir dire, admissibility of evidence, and restrictions on damages arguments and assessment. The judicial abhorrence of sympathy as a ground for substantive decision making during some phases of the trial clashes with judicial tolerance of the emotion during others, giving rise to a pattern of sympathy in, sympathy out where the propriety of empathic identification decreases as the trial action builds to a stage requiring jury deliberation. Numerous judicial constraints upon emotive identification prove to be unnatural or unworkable because they are grounded in a shallow understanding of emotion and its interpersonal propriety that directly contradicts the role of emotion in lay interpersonal relations. Yet, at the same time lay patterns of emotive response are brought into the adjudicative mix by the jury trial model, which relies upon the judgment of lay jurors who are asked to abandon their socio-cultural understandings of emotional response for a substitute logic of emotive form and content that directly contradicts their pre-existing lay socio-cultural practices. Moreover, although jurors are told that evidence, not empathy, is the proper basis for substantive decision making, the personal injury trial is framed within a lay conception of emotive identification. Jurors are picked on the basis of their potential to identify with the plaintiff, and asked to rely upon life experiences in adjudicating the plaintiff's claim. These inconsistencies compel the conclusion that the role of emotive response in adjudication should be reconceptualized, since it is both a natural and rational response to evidence of injury.