By Dr. Ken Broda Bahm:
When civil litigation is being discussed by those outside the courtroom and outside the legal field, what stands out is often the perception, at least, of very high damages. The high-dollar figure being awarded, based on a questionable claim, is the poster child for the abuses of litigation. But for some reason, inside the courtroom and specifically inside the jury room, juries are often able to get to those high numbers – numbers that some of those same individuals would have scoffed at had they heard about it in the news instead of having been part of it in the deliberation room. Part of that, of course, is because as jurors they have heard the evidence. But part of it is also that, over the course of the trial, the high numbers have started to seem less shocking and more normal. Both plaintiffs and defendants care about this numbers effect, with plaintiffs wanting to place the figure as high as possible, and defendants – often, but not always – wanting to offer and to normalize a counter number of their own.
In our own experience running mock trials, we don’t often get the chance to see mock jurors really dig into the details of the damages case. Generally, they will spend minutes and not hours or days talking about the damages figures. But within those minutes, I do think we often get to see the most important parts of damages deliberation: The parts where jurors develop an orientation, talk about an approach, and decide if they want the numbers to be high or low. A lot goes into how a jury will view the numbers offered by both parties, and how they determine what is typical, what is credible, and what is valid. In this post, I am going to share the top five factors gleaned from practical experience for making damages numbers acceptable and normal to a jury.
One: Make It a Number
I have talked with attorneys on both sides who are afraid to offer a number on damages. For one category, or even for the case as a whole, they will want to leave it as a blank that the jury fills in based on an open-ended, “Give what you think is fair” message. For plaintiffs, the fear is, “What if they would have given more and my number lowers it?” And for defendants, the fear is, “What if they would have given less, or what if mentioning the number makes me look guilty?” It isn’t always an easy call in the context of a given case. But in the context of the social science research, there is a clear answer: Giving a number that jurors can “anchor” on helps. A high anchor from a plaintiff helps push damages higher than they would have otherwise been, and a low anchor from a defendant does the opposite. It is a delicate matter to decide on a number, but if you do your homework and offer one, you will have more influence on the final result. And what advocate doesn’t want more influence?
Two: Address the ‘Gist’
More recent research on damages shows that jurors don’t decide on a number in a single step or just calculate their way to a final damages number. Instead, they will first decide on what the ‘gist’ of damages should be, and then they work their way to a number that fits that gist. By ‘gist,’ I mean the subjective sense that the number ought to be “Low,” or “Average,” or “High,” or “Stop the presses and send a message high.” Before they get into specific numbers, individuals and groups will want to ground their decision in one of those subjective categories, and often the arguments during deliberations are not about numbers but about which of those categories is the right one in this particular case. So when it comes to plaintiff’s requested damages or defense’s counter, don’t just talk about the numbers, talk about whether this is a case that jurors might think of as typical, or as a case that has some special circumstances that should push damages in a higher or lower direction.
Three: Talk About It Early
When the plaintiff is offering an amount, it is nearly inevitable that there will be some initial “sticker shock” over the amount. They will compare it to what they earn in a year, or to what they are paying for their house, and for most cases in most venues, that comparison is not going to help a plaintiff. However, the more jurors hear the number, the more they start to become desensitized to it. It starts to sound normal. So as early as possible in the trial, start mentioning the number. That often means during voir dire. Plaintiffs might be able to strike people who would have trouble with that number. But even without that, it is a good idea to get them used to the numbers. For defendants, it is a trickier matter to decide when to bring up a counter number. In some cases, you want to build that solid “no liability” case first so it is very clear that the damages number is an “even if…” argument. But if your strategy centers on reducing damages, it will make sense to start normalizing those low anchors as early as possible as well.
Four: Contrast It with the Extremes
Jurors want to compromise. They don’t want to listen to one side and say, “Okay, I agree,” and implement that preferred verdict. Instead, they want to reach their own decision, and that means adjusting based on the anchors that the parties have given. Offering a contrast to your own numbers can serve as one check on that adjustment. That is, if you can give the message that the compromising has already been done, then that can limit the adjustments that jurors are motivated to make. For a plaintiff, that means that it is often a good idea to focus on some categories and some amounts that you are not asking for. A damages expert might say, for example, that it would be reasonable to budget for full-time life care starting now, but that the injured plaintiff doesn’t feel she needs it right now. In contrast to the higher figure, the amount you are asking for now doesn’t feel as high. Defendants can do the same in the opposite direction. The defense expert, for example, could say that it is uncertain whether a second surgery is needed or not – if we excluded it, here is what our amount would be – but we are including it just to make sure we are being fair. Now, in contrast to the lower figure, the defense’s amount seems more generous.
Five: Show Your Work
How did you arrive at a number? What does the number mean? How would a jury unpack it to decide whether it is reasonable or not? How you got to the number matters as much as the number itself. To the jury, it matters more. So, use an expert who is able to explain the process in an understandable and engaging way. The message isn’t, “Trust me, I’m an expert,” it is, “Let me show you how to arrive at a good number…” Ideally, the damages expert is telling a story and helping jurors solve the mystery of how one puts a reasonable value on this case. Ultimately, they may not end up with your preferred number, but if you have influenced the road they take to arrive at a number, you have influenced a lot.
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Other Posts on Damages:
- Damages: Know Your Anchor
- Remember, With Damages It’s the Message and Not Just the Math
- Consider How Jurors Arrive at Damages Numbers: In Stages and With Difficulty
- Make Your Damages Numbers Meaningful
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Image credit: 123rf.com, used under license