By Dr. Ken Broda Bahm:
Sometimes as a defendant, you find yourself in the position where you need to admit to at least some part of the plaintiff’s liability claim. The plaintiff really was injured, and there really was a step that was skipped on your end. While you still might have other claims, causation, and level of damages to argue about, you still need to devote attention to the admission: Will it increase credibility or diminish it? Will it stay contained within the issue, or will it bleed over into other issues?
Your first opportunity to address that with jurors will be in voir dire. Your panel may not expect a defendant to admit anything and may carry some attitudes on it. The other side is likely to see it coming and may try to leverage the admission, using their voir dire to imply that they’ve already fully won, or to suggest that you’re using the admission tactically to escape responsibility. Your own voir dire is an appropriate time to a.) Let them know your position, b.) Respond to the poisoning of the well that a plaintiff might attempt, and c.) Learn of some attitudes toward admission that could bias them against you. In this post, I will share some general questions I recommend.
My suggested questions are listed below. In the parenthetic, I note whether the questioner should follow up on answers or not. Sometimes you just want to note an answer (for your own purposes in selecting strikes) but not risk following up when that would likely develop the other side’s themes or expose your favorable candidates for them to strike.
Suggested Questions:
Now, there is one thing that is unusual in this case, and I need to get your reaction to it. You might expect that in a case like this, the company might say “We did nothing wrong,” or even blame the person who was injured. My client is not doing either of those in this case. Instead, the company is taking responsibility – the accident is on us.
So, here is the question: Does anyone have a negative reaction to the fact that the company is accepting responsibility?
[Note, you don’t want to invite people saying that it is good that your client is taking responsibility, as those will be plaintiff strikes]
To get more specific, who feels that if the defendant admitted liability, the case should be over and there should be nothing left to decide? Raise your hands if you might lean in that direction.
[Note, but don’t follow up]
- Ms. A, I noticed that you did not raise your hand: What else would you expect to be left over to decide after a party has admitted their own fault?
[May ask a few, fishing for jurors to mention causation and damages]
Consistent with that, you will hear that there are three steps to your verdict. One, the defendant did something wrong; two, that wrong action caused a specific injury; and three, that specific injury has a cost. If the defendant admits to number one, then there is still two and three to argue about. Mr. E, does that make sense?
Now, hearing that, who has a negative reaction to the idea that a company would admit that they did something wrong and caused an injury, but then still argue over what injuries it actually caused, or how much these injuries should cost? Who has a negative reaction to that?
[Note, but don’t follow up in detail]
- Who agrees with the idea that, if you admit that it is your fault, then you really should not be able to question the degree of harm that you caused?
[Note, but don’t follow up]
- And who disagrees with that idea? Mr. B, why do you disagree? Ms. C, how about you?
[Talk to several, developing the themes that cause and damages might still legitimately be in question and that there shouldn’t be a fully open-door to damages]
- Put another way, who believes that, if a defendant is at fault, then the plaintiff should get all that they are asking for?
[Note, but don’t follow up]
Now, let me ask about your reaction to some additional information. In the case of some injuries, our position is that the accident was partially responsible, but not fully responsible for the injury. For instance, there will be testimony that it was in part related to a prior injury. In that case, our position is to say, let’s give the plaintiff the part that we are responsible for.
- Who has a negative reaction to that?
[Note, but don’t follow up]
The bottom line is this: We want to take responsibility for everything that is reasonable. Just hearing that, does anyone feel suspicious that the company might be splitting hairs or trying to evade responsibility?
[Note, but don’t follow up]
This is a case that involves a claim for monetary damages. As noted, because my client is admitting liability, my client will say that some categories of those claimed damages are appropriate, while other categories are not.
At this stage, who here feels that it would be difficult to look at damages categories and amounts and draw those distinctions?
[Note, but don’t follow up]
And who feels that it would be difficult to look at a person with injuries, a person like the plaintiff, and say “Some of your injuries are related, and some are not.” Who would have difficulty with that?
[Note, but don’t follow up]
We frequently hear from jurors saying that it is difficult to translate ideas like pain and suffering into dollars and cents. That is a common feeling. But who feels that, in contrast, it really isn’t difficult?
[Note, but don’t follow up]
We have also heard some jurors say, “It is better to be generous, and to give an individual too much rather than too little.” Who feels like they might lean in that direction?
[Note, but don’t follow up]
Mr. F, I notice you did not raise your hand on that? Why do you think you wouldn’t lean in that direction?
[Fish for “because all damages should be proven” or similar message]
______
Other Posts on Admissions:
- Distinguish Between Hard and Soft Admissions of Fault
- Doctors, Don’t Expect a Partial ‘Sorry’ to Reduce Liability
- Don’t Sully Your ‘Sorry’