Don’t Let Damages Damage Your Case

Determining damages awards makes jurors nervous.  And why shouldn’t it?  Most jurors don’t come equipped with business or economics degrees.  Even if they do, calculating nebulous subjects such as “pain and suffering” or “continuing medical support” baffles even the most pragmatic jurors.  As a result, these decisions are often fueled by emotion and passion rather than logic and sound math.  We often see focus group participants award millions of dollars, while other participants who heard the same exact facts and arguments award nothing. 

Plaintiff attorneys can offer nice round dollar figures supported by damages equations that give jurors something solid to hold onto in a sea of random scary numbers.  Must be nice.  Defense attorneys usually feel stuck arguing they owe nothing, even when liability is more likely than not but settlement is off the table.  However, zero isn’t a good anchor when your opponent is standing on more solid ground – especially since some jurors may believe they should award the plaintiff’s number simply by default.  In certain situations, you should consider suggesting an alternative damages amount in the event they find your client liable. 

Alternatively, try suggesting general damages scenarios that reinforce the notion that low damages or no damages are the jury’s best option.  For instance, let jurors know a damages award should take into account the plaintiff’s irresponsible behavior that exacerbated the injury, the patient’s pre-existing medical condition that contributed to the outcome, or the defendant’s actions that minimized the issue.  Arguments not strong enough to combat liability may still be valuable weapons in the battle against high damages awards.

Still, there are risks to presenting a defense alternative.  Here are some pros and cons to consider:

Pros:

• An alternative damages theory closes the gap between zero and the likely astronomical number the plaintiff suggests is owed.  During our focus group damages discussions, countering the plaintiff’s demand with a more reasonable damages theory reduced the average award between 9 percent and 41 percent.
• It allows jurors to believe a lower award is more fair because it takes into account both sides, rather than awarding the plaintiff a windfall.
• It arms conservative jurors with a number other than zero, which they can leverage during deliberations to convince other jurors that lower damages are more appropriate.
• Offering an alternative damages proposal makes the defendant seem more reasonable.  If the plaintiff clearly has needs, a life care plan should take them into account.

Cons:

• Some jurors equate offering a number to admitting guilt. 
• It establishes a minimum, and implies damages can go up, but not down.
• It could disarm defense jurors who are convinced the defendant owes nothing.

The decision to offer an alternative damages number or calculation should be made on a case-by-case basis.  We suggest testing this tactic during focus groups before getting to the courtroom to see how different numbers and scenarios might play out.  If you’re interested in seeing how a jury will receive your alternative damages theory, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.