By Dr. Ken Broda-Bahm:
When it comes to persuasive courtroom communication, there is a three-word piece of advice that is drilled into the marrow of every experienced litigator: Tell a story! Trial lawyers don’t go far without internalizing that advice. When it comes to applying the advice, however, most defendants will apply it most naturally and most immediately to the events that led to the suit, the structure and the arc of who did what. Telling a story about a timeline focused on the question of liability is important, obviously; but a full appreciation of the need to tell a story means applying it to everything, including the parts of your case focused on damages.
Many plaintiffs’ attorneys know this. In laying out a narrative focused on damages, they are talking about a person getting past their injuries, getting justice, protecting the community, and or delivering a dollars-and-cents message to a party who needs to hear it. The defense often needs a damages story just as much. Defense attorneys should take to heart something that is already baked in for plaintiffs: the damages section is not just data, it’s not just analysis, and it’s not just throwing numbers back and forth. The damages section is part of the overall motivating story for jurors, and like the rest of the story, it needs to be targeted, engaging, and interesting. In this post, I will share a short set of common features — goal, conflict, and path — that should be present in a civil defendant’s damages story.
The Story’s Goal
The damages part of the story needs a motivation: a factor that would encourage jurors to make the right decision. That motive should not be about saving the defendant money. Instead, there needs to be some other goal at work. Defendants aren’t just relegated to responding to the plaintiff’s motivator, be it sympathy or safety, but can introduce their own driver of the plot. Jurors may want to preserve consumer freedom or cut against a perception of “jackpot justice.” They may want to see an amount that redeems a defendant’s own responsibility. They may want to emphasize personal resilience and a real path toward recovery for the plaintiff. The specific motivator will vary based on the case and the venue, but defendants should thoroughly explore and then embrace the question, “What would make jurors want to keep damages in a reasonable range?”
The Story’s Conflict
Every story contains a conflict, and in litigation, that conflict can take the form of the question, “Why is the defense even talking about damages at all?” When someone is simultaneously saying, “I’m not responsible,” and “here is how much I would owe,” it can sound pretty inconsistent. On the other hand, if a defendant is conceding liability or downplaying its defense, then the tension might be “then why are you here — why haven’t you paid already?” Ultimately, defendants have a responsibility to explain and reconcile their stance on damages with their stance on liability and connect that to their own motivation for going to trial. In our experience, it is very easy for analytically trained attorneys to overestimate jurors’ understanding of conditional argument: it is not enough to deliver the “…if you get to damages, but I don’t think you should…” message just once and assume that jurors understand it. Instead, work that conflict into your main message on damages. One way to do that is to frame your number as a test of the reasonability of the plaintiff’s position, rather than as some kind of “offer.” In other words, the message is, “If the plaintiffs were genuinely focused on making their client whole in this case, what would the actual cost of that be?”
The Story’s Path
The social science is reasonably clear in showing that, in most cases, when jurors get to the point of deciding on damages, defendants are better off if they have shared their own “anchor” figure on what those damages ought to be. In offering that anchor, however, it is critical to do so based on a process and not just based on a “split-the-difference” compromise. Going with a number that is a fraction of their request ends up reinforcing the plaintiff’s number by using it as an anchor, as they intended. Instead, in coming to an alternate figure, defendants need to give careful attention and research to the alternate process that would yield that number. By laying out the path, showing your work, and basing the calculations on concrete factors that can be proven and quantified, you are also appealing to jurors’ motivation to avoid sympathy and speculation and to instead base their decision on the law and the evidence.
How much time and emphasis the defense’s damages story gets as part of your overall defense will, of course, vary based on your case and your ultimate strategy. Sometimes, the message from the defense is going to be a clear “no damages.” Ultimately, however, in many cases defendants need to stop thinking of damages as an afterthought, or a “just in case” add-on to overall strategy. The plaintiffs’ bar, with its Reptile and other “safetyist” messages, has done well by integrating the damages message into their core messages. Defendants need to look at ways to do the same.
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Other Posts on Damages Defense:
- Defendants, Reduce the Risk of Your Verdict Going Nuclear
- Account for a Jury’s Purpose on Damages
- Defendants, Frame Your Alternate Damages as a Test, Not an Admission
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