By Dr. Ken Broda-Bahm:
For some attorneys on the defense side of civil litigation, there can be something I call the “adversarial impulse,” which is the belief and behavior that, “If it can be denied, then deny it.” The most seasoned trial lawyers, however, know that it doesn’t always pay to fight every battle. Not only are some battles unlikely to be won, but fighting them can actually make your situation worse
One area where practical strategy can often run up against this adversarial impulse is the decision on whether to concede liability. Sometimes that decision is patently obvious, and sometimes it is decided for you by a judge. But more often, it is a close call: It is possible to fight the battle on that front, but there are some pretty big hurdles. Conceding liability could end up giving away a valuable part of your case and leverage, or could help you more productively focus your case where you’re stronger, for example on causation and damages. Instead of just reflexively choosing to fight on liability because “fight” is what you’re hired to do, it can make sense to pause for thought. In this post I will share a four question checklist on the decision to concede or contest liability, to be answered through sober discussion and research.
Should We Concede Liability?
It depends…
Is There a Realistic Chance of Winning Liability?
How likely is this to be an issue you win? Anything is possible, but does the evidence lay out a rational and credible path in that direction? In deciding whether it does, be wary of your own biases as well as the groupthink within your team. Are you suffering from an optimism bias in favoring your case more than an outsider would? Or do you suffer from the opposite pessimism bias that comes from dwelling on worst-case scenarios? It may be a question for pretrial research, a focus group or a mock trial. Testing that question on a few juries can give you a foundation. There are also ways to use your mock trial results in order to model the question statistically. Determining how often, percentage-wise, a jury randomly drawn from your pool of mock jurors would end up with a pro-plaintiff majority on liability won’t provide a perfect prediction, but it can be a lot better than a guess.
Will a Concession Helpfully Narrow the Case?
All of the evidence used by either side in trial has to be relevant and material to a question the jury is deciding. So if there is a concession of liability, that should exclude a lot of information from both sides. The narrowed case could then have a lot less of the kinds of evidence that could fuel hostile cross-examination, weaken credibility, or motivate a larger award. The narrowed case, on balance, could be better for you. Remember, though, that the plaintiff will have every reason to try to get the bad stuff in anyway, and can be expected to attempt to creatively wedge it into causation or damages, so consider whether any of those avenues might be realistic before you pick a path.
Will a Concession Increase Credibility?
How will a jury view a concession of liability? It could sound like doing the right thing, stepping up, and taking responsibility. It could look wise to acknowledge the obvious, and potentially even considerate to focus the jury’s time on what matters most. It could also be seen as weak, or tactical. When you do decide to concede, you will want to explore ways to message that concession to ensure that you are maximizing the benefits and minimizing the drawbacks. Don’t just ignore the conceded issue: Let the jury know what you’re doing and why. If you’re acknowledging wrongdoing, then some form of apology is probably also in order.
What Motivations Drive Damages (With and Without a Concession)?
Jurors aren’t just following the instructions when they award damages. There are different motivations that drive the process. They might be just “paying the bills,” trying to ensure that the plaintiff’s expenses are met, or they might be trying to right the scales of justice. They could be sending a message, or even trying to exact some revenge. These different motivations matter a great deal, and any concession is likely to change them. You’ll need to assess it: Is there more anger when you fight liability and lose, versus when you concede it in order to focus the case on other areas where you are stronger?
The difficulty and the stakes of this decision underscore the importance of pretrial research on your case. But it isn’t just a matter of asking your mock jurors “Should we concede liability?” When you ask, a fair number will reflexively say “No,” because they carry the “adversarial impulse” as well, and assume that it is unwise to give anything up. The proper way to test it is comparatively: some mock juries are hearing the case with liability contested, and others are hearing the same case but with liability conceded. Then you can decide which groups are better for you, and ultimately whether your best path is to fight liability or to concede it.
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Other Posts on Focusing Your Case:
- Counter the Plaintiff’s Damages Anchor (Especially When It’s Overboard)
- Client Made a Mistake? Focus on the Factors of Forgiveness
- Beware of Joint Evaluation in Multi-Defendant Cases
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