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Yoo-hoo! ABA Journal!

When a new study is released with numbers on median (i.e., half-higher, half-lower) damage awards, the one thing you should realize it's not going to be capturing are "runaway" outcomes, which by definition are the outliers. If 98 lawsuits end in awards of $5,000 each, one ends in an award of $500,000, and one ends in an award of $50,000,000, then the median award among the 100 will be exactly $5,000, even though the mean, or average, will exceed $500,000. Those particular numbers are purely by way of example, but in all real-world instances I know of in which both measures are available, mean or average awards come out higher than median, and often very much higher (which has implications for the way cases settle before trial "in the shadow of" possible outcomes, as the vast majority do; these settlement flows of course do not show up in figures on trial awards). Median trial numbers are obviously badly flawed as a way of trying to assess such questions as whether the amount of money moving through the system is high or low, rising or falling.

To put it differently, could you please refrain next time from asserting that median numbers "debunk tales of runaway civil trial damages", when they quite plainly do no such thing?

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.