By Dr. Ken Broda-Bahm:
Here’s one area where there’s a conflict between social science and practical intuitions: Should the civil defendant offer their own damages number to anchor jurors on a lower amount? The social science on the subject is relatively clear: If the jurors get to the point of awarding damages, a lower number from the defense will help keep the award lower than it otherwise would have been. But in practice, defendants can be reluctant to offer that number, fearing that it will look like the defense concedes the point that damages should be awarded, with the alternate number just acting as a floor for the ultimate award. Those fears are not unreasonable. In several recent mock trials, I’ve sat with clients listening to mock jurors say things like, “We should at least award $x, because that is what even the defense offered to pay,” and “If you’re not guilty, you don’t offer anything.” So the lower anchor helps you out, but it can also interfere with the consistency of a “no liability” message.
Like most things in trial, I think it comes down to the way the message is laid out. It is definitely a case-by-case decision that needs to be made in the context of every civil case, and there are cases where the liability defense is so strong that you don’t want to risk watering down that message with a hypothetical discussion of damages. But in cases where a jury reasonably could get to the point of asking for a calculator, it really helps if they’ve heard more than just the plaintiff’s numbers. Still, there are better and worse ways to do it, and the message needs to be conveyed very carefully. In this post, I’ll share my top five principles to follow in laying out a defense number.
1. Make Sure Your Liability Position is Crystal-Clear
Assume that once you start throwing out numbers, jurors’ first assumption will be that this means there is at least some awareness of wrong-doing. Counter that tendency by being repetitive on the basic point that you think that liability is the winner :
We do not believe we have liability in this case.
We think that when you look at the verdict form after reviewing the evidence, you are going to enter a “No” right here; and will never get to this question of damages.
But my job is to be complete on the defense side, and I would not be doing my job if I did not mention damages at all.
2. Spend Time Acclimating the Jury to Conditional Thinking
When you work in the law and spend a lot of time arguing motions to the court, conditional thinking is your bread-and-butter: “They are wrong on this point, and if they’re not…” It seems logically basic, and attorneys can take it for granted that it is easy and common to understand the “if” part of that argument. But when you’re in front of a jury, remind yourself that it isn’t basic. Many to most jurors have little practical experience with that kind of thinking on a day-to-day basis, and the conditional ends up sounding like, “My dog didn’t bite you, and if he did, I don’t have a dog.” Consider that jurors might find it inconsistent, and address that assumption head-on:
You just heard me arguing that there is no liability, so you might wonder why I am even talking about damages. I am just doing that on the off chance — really the very small chance, I think — that you do get to the point of awarding damages. If you do get to that point, I want you to have the full picture.
3. Don’t Anchor Off the Plaintiff’s Number
The whole reason why either side gives a number is based on the way jurors address damages. They typically don’t come up with a number out of thin air, but will instead follow an “anchor and adjust” process based on any numbers they’ve heard. A plaintiff asking for $50 million doesn’t guarantee a $50 million award, but likely will get an award higher than it would’ve been if the plaintiff had asked for $20 million. That is because they’ll start with what they heard. Make sure you’re not doing the same thing in offering your own number. Particularly in non-economic categories, a defendant might think “$10 million for loss of capacity is too high, so maybe what is fair is about one fifth of that: $2 million.” But that is using, and hence validating the plaintiff’s numbers.
4. Give an Alternate Process, not Just an Alternate Number
The social science shows that damages anchors, for both sides, work better when they are meaningful. In other words, a number that seems to have been pulled out of a hat will be a lot less influential than a number that appears to be the end result of a logical evidence-driven process. So it is critical for defendants to communicate that they are not just paring back the plaintiff’s high numbers, but are instead recommending a better, more accurate, and more legally appropriate method for arriving at numbers, for both economic and non-economic categories. Don’t just talk about the end results, talk about how they get there.
5. End on a Stronger Point
Even when presented well, the damages section is not likely to be the high-point of your defense. Unless it is one of those rare cases where you feel like your best shot is on a lower damages anchor, it shouldn’t be the high point. Instead, your high point consists of your strongest reasons for a jury saying “no liability.” Still, I have seen many defendants weaken that emphasis by ending with a conditional plea for jurors to just award less. If you do offer a lower number, don’t make that the last point. Instead, save a liability point for the end so that you can wrap-up your opening, closing, or witness order with your strongest possible message.
____________________
- When Arguing Damages, “Drop Anchor” Even in Murky Waters
- Counter the Plaintiff’s Damages Anchor (Especially When It’s Overboard)
- Consider How Jurors Arrive at Damages Numbers: In Stages and With Difficulty
____________________
Image credit: Shutterstock, used under license