When It Comes to Damages, Sometimes Mum Is Not The Word

A lot of defense lawyers we’ve worked with over the years are reluctant to suggest appropriate damages figures to jurors at the end of a trial, figuring that to do so could legitimize the plaintiff’s claim and lend it more credibility than it otherwise might have.

But if the opposition is going to offer the jury a suggested number, we highly recommend you do so, too.

A nationwide survey we conducted last year found 59 percent of prospective jurors believe plaintiffs almost always inflate their damages figures, and 60 percent agreed the defense almost always lowballs its numbers.  The result: an astonishing 70 percent of respondents said they would handle this by simply averaging the two sides’ numbers.

This plays out in the real world, too.  We have interviewed jurors after dozens of trials, and these jurors nearly always tell us that during deliberations, there are a few jurors siding with the plaintiff’s numbers and a few with the defense’s, so the final award is a number somewhere in the middle – even if the judge’s instructions explicitly forbade averaging individuals’ awards.

We’ve found most jurors don’t want to give plaintiffs an undeserved windfall, but if you refuse to play ball and insist “zero” is the number even if they find against you, you’re not giving them much choice.  By offering a competing view of what would be fair and just, you can help limit the damages should the jury find against you.

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FYI, for those of you attending DRI’s Nursing Home/ALF Litigation seminar in Scottsdale this week, Jury Impact Senior Vice President Claire Luna will be presenting Thursday afternoon.  Please make sure to attend her hourlong talk on the myths and realities of jury selection and demographics, with brand-new findings based on a national survey focused on assisted living facilities that we conducted just for this seminar.

If your organization is interested in inviting a Jury Impact staff member to speak at one of your upcoming events or through a webinar, please contact Claire at cluna@juryimpact.net or 714.754.1010.