By Dr. Ken Broda-Bahm:
Sometimes in civil cases, the plaintiff’s liability claim is opportunistic, wishful, or factually weak. Other times, it is real. Someone didn’t do their job, a danger was missed, or — in that Olympic champion of passive-voice phrases — “mistakes were made.” In this situation, the question of whether to contest or concede liability is often a serious conversation for the defense team. In that discussion, it is natural to think it might be worth it to aim for the small chance of success in fighting liability in the spirit of “Why not give it a try?” The reason is that trying comes at a cost. When you make an argument only to have it be slammed by the jury, you have less credibility, and the jury potentially has greater anger and a greater impression that your client is not taking responsibility and “doesn’t get it.” That can set the stage for greater damages.
That said, it is often a big step for the defense team to agree to a concession. Sometimes when the team doesn’t agree or doesn’t fully commit, you get what I consider to be the worst of all possible postures: kinda-conceding-but-kinda-contesting liability. They might “accept responsibility” at a broad level while still denying that they did anything wrong on the specifics. They might soft pedal the liability defenses but still trot them out, not having the boldness to clearly state, “We are liable.” I call that in-between stance the worst because you end up with all the harms of admitting liability without the credibility advantage. You’re wearing the target of blame, but without the small bit of armor that comes from an honest acknowledgment. When accepting liability, it pays to treat it like you’re crossing the Rubicon: Don’t just wade in or mess around in the current, instead make sure you’re clearly landing and planting your flag on the other side. It isn’t for every case by a long-shot, but when you have made the strategic decision to admit liability and you do so clearly and consistently, you stand to realize three main benefits.
The Legal Benefit
Lawyers, being lawyers, are likely to key in on this one first. When you concede liability, you give yourself a good argument for keeping out a solid chunk of the documents and testimony that could serve to make jurors angry. You narrow the case to just the questions of causation and damages, which can not only shorten and focus the trial, but also transform the jury’s task from assessing a broad morality play to conducting a specific logical or financial analysis. The plaintiffs will still have every motivation to say, “but judge, we still need to tell the whole story and put this in context,” and there’s some risk in the judge agreeing to a degree, but legally evidence should only come in if it helps the jury resolve a contested issue.
The Framing Benefit
From the jury’s perspective, what is the case about? The most pragmatic answer is that it is about whatever they spend most of their time talking about. When you contest liability while having little chance of winning it, then the dominant focus of their conversations will be the poor choices and irresponsible actions of your client. The frame for their attention is one of irresponsibility, error, and negligence. When you concede liability you are admitting that, but there is a difference between jurors logically knowing that you’re at fault and jurors psychologically spending all of the time, focus, and effort on all of the ways and reasons you’re at fault. If that liability focus is more likely than not to put you in a negative frame, then you might consider the advantages of a frame that would reorient the jury to spend all of that focus instead on the logic of causation or the analysis of damages.
The Motivational Benefit
I think it pays to think of the motivations that drive jurors. They aren’t doing the hard work of paying attention, remembering, arguing, and deciding just because the judge and the instructions ask them to. Instead, they’re also implicitly following some idea of social good. They take a position because they think some benefit comes out of that position. A company that is denying or minimizing fault, when it is at fault is a company in denial, a company that is responsible not just for the injury, but for a lack of awareness about it. It is a company that doesn’t get it. The resulting perceived irresponsibility can in turn motivate jurors to award a number that will cause them to get it: a message. Alternately, when the company concedes liability, that can convey that it has already gotten the message, a stance that drains jurors’ motivation to communicate through a number at the bottom of a verdict form.
When running mock trials, we have increasingly seen one post-pandemic reality: jurors can get a little ticked off with the idea of powerful entities playing fast and loose with honesty, responsibility, and safety. Punishment-oriented thinking increases the likelihood and severity of nuclear verdicts. There is, of course, a big disadvantage in conceding liability: You’re at fault, with no opportunity for jurors to see it any other way. But when you’ve done your own case research and analysis, and when you have good reason to believe that result is likely anyway, then you might have a good reason to at least reap some of the benefits that can come from conceding liability.
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Other Posts on Conceding Liability (or Not):
- Pick Your Battles: The “Should We Concede Liability?” Checklist
- Take Note: “I’m Sorry” Doesn’t Necessarily Mean “I’m Liable”
- Take Responsibility (Without Conceding Liability)
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