Be Careful Selling the Plaintiff Short

People generally like to think of themselves as optimistic and hopeful.  We like to give people the benefit of the doubt, and we like to think they can succeed if given the chance.  Jurors are no exception, which can put attorneys in a delicate situation when it comes to talking about some of the underlying factors that drive damages.

Consider a case involving a child with a mild brain injury.  One of the factors driving damages, of course, is whether that child will be able to work as an adult and in what capacity.  Consulting experts often opine that although the child might have some learning disabilities, he or she will be perfectly capable of working in a lower-level job such as a landscaper or kitchen worker. 

The assessment seems innocuous, but it runs up against jurors’ fundamental optimism.  We’ve found repeatedly through our research that jurors blanch at such cold calculations of a child’s potential, and they can find it insulting.  They don’t want anyone to put that child “in a box,” and they certainly don’t want the defense for the people who injured the child to do it.

The same goes for long-term care needs, one of the most significant factors driving awards.  The plaintiff’s attorney wants to downplay his client’s ability to live and function independently, and the defense wants to do the opposite.  In this case, the defense has the benefit of being the optimist, arguing that the plaintiff can achieve more and live a full life, and his experts are selling him short.

Whenever possible, we recommend placing yourself in the position of the optimist to appeal to your jurors’ good nature.  Even if the plaintiff is likely to have some limitations, stress what it is possible for him to achieve with hard work, a little help and the right attitude.  Instead of acknowledging the fact the plaintiff’s career opportunities may be limited to labor-type jobs, emphasize that he will be capable of having a fulfilling career and supporting his family.

Of course, there will be times when optimism doesn’t fit your game plan. As a defense lawyer in a case involving a severely injured plaintiff, you have little choice but to argue that person’s life expectancy will be shortened.  Needless to say, you should approach this as delicately as possible and don’t harp on it repeatedly.  Jurors aren’t illogical – most will understand that someone who is bedridden and brain-damaged is unlikely to live to be 80 – no matter what the plaintiff’s lawyer says.

Discussing these damages issues without seeming callous or insulting the jury is one of the most difficult balancing acts to manage.  But a little optimism can go a long way, and make you more sympathetic to the jurors who will be deciding your case.

If you have case involving delicate damages issues, we’d love to help you find solutions.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.