By Dr. Ken Broda-Bahm:
Here’s a scenario we often see when watching deliberations in a mock trial: The subject of the defendant’s alternate damages number comes up, and jurors see it as a weakness. Even when the defense attorney has supplied all of the responsible caveats (e.g., We don’t think you should get to damages, but if you do, I wouldn’t be doing my job if I didn’t give you some guidance…) we still hear reactions like this from the jury:
- So they’re admitting it.
- If they didn’t do anything wrong, why give a number?
- It’s a mistake for them to concede that they owe this.
- The damages we award should be at least that much.
Giving an alternate number is, of course, somewhat conventional for defendants, and there are good reasons for that. But as a counter-anchor has become more normal for the lawyers, it is still not normal for jurors. I think the reason for the disconnect is that lawyers are trained to consider fallback positions, but for jurors, an argument that starts with “We don’t think we did anything wrong…but if you disagree…” sounds like waffling. The kinds of conditional thinking that lawyers take for granted can be quite foreign to jurors. Some understand it, and even expect it, but many jurors will be confused and will see it as an admission or a settlement position.
In some cases, the solution may be to just fight the battle on liability and causation and not offer an alternate number on damages. It can be risky, however, to leave jurors with only the plaintiff’s guidance if they do get to a discussion on damages. An alternative is to change the way you talk about the alternate number. Based on the experience in a recent case, I think there is a different way to frame it. By framing the defense counter as a test rather than an offer, the defense can still provide an anchor while resisting the appearance of an admission. In this post, I’ll share an example of how defendants can do that.
When You Don’t Want It to be an Offer
When you do see a need to point jurors toward another number on damages, but also see a risk in jurors perceiving it an “admission” or a “concession,” consider a different way of characterizing the purpose of the number. One solution may be to frame the defense number not as a proposed number for damages, but instead as a test of the reasonability of the plaintiff’s number. The message may be something like this:
Now, I want to be really clear: We are not suggesting this as a number that you would write on the verdict form. This blank [indicating on the verdict form] should stay blank. As we have already covered, we don’t think you should write any number there because the company is not liable for this loss. No liability means no damages.
So what is this number I’m sharing? It is something you can use to test the reasonability – or lack of reasonability – of the plaintiff’s number. Think of it this way: If the plaintiff’s main concern is really to fix things and to address any lingering issues, then what would that cost? This [indicating] is what it would cost. The comparison between our number and theirs, the test, tells you this: The fact that they are asking for so much more shows that their concern is not really with meaningfully fixing whatever lingering issues are still there. The plaintiff’s main concern must be something else.
As with any message that seeks to alter jurors’ perceptions, it may not be enough to say it once. But with emphasis and repetition, it may be possible to have the message stick that it’s a test and not an offer.
But You Still Want It to be an Anchor
There is a reason consultants typically advise in favor of defendants offering an alternate damages number. The social science on “anchoring bias” (e.g., see Bystranowski, Janik, Próchnicki, & Skórska, 2021) makes it clear that jurors tend to award less in their ultimate number when the defense provides a lower number of their own. The research also shows, however, that the benefit of anchoring stems from the presence of another number, not from the stated purpose of that number. In other words, jurors awarding damages are still likely to consider the lower anchor even when the defense claims to be using it for a different purpose. While this is something best tested in the context of a mock trial, it stands to reason that framing the alternative as a test will still allow the number to function as a lower anchor in the event that jurors do get to the stage of awarding damages. In other words, even though the defendant is not suggesting the number as an amount jurors should award, jurors may still consider it as a critique of the plaintiff’s number and possibly as a starting point or a lower comparator if and when they get to the task of arriving at a number.
Fundamentally, it is obviously a tricky argument to make. You want to look strong, not weak, and you probably want zero damages and not just a lower number. But you also want jurors to understand what makes the plaintiff’s suggested damages excessive, and you want jurors to hear what a reasonable number might be. The solution could be to emphasize that you’re not making an offer, but are instead helping the jurors do their job in testing the plaintiff’s number.
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Other Posts on Alternate Damage Amounts:
- Defense Damages Counter-Anchor: Get Them to Calculate, Not Speculate
- Defendants – Argue Damages Differently
- Damages Defense: Carefully Set the Smaller Anchor
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