There is a recent article in “The Jury Expert” by Jeri Kagel called “Damages: A Defense Attorney’s Dilemma”. It got my mind brewing about this question that has historically plagued defense attorneys in injury cases.
Kagel discusses some concerns defense attorneys face that I have seen over and over again in my practice. Specifically, some defense attorneys are concerned that speaking about damages means conceding liability. Others feel that arguing against injury-related damages means that the defense is callous and dismissive of the plaintiff’s injuries. While this can be the case if not done strategically, it does not have to be true.
Does Discussing Damages Mean I Concede Liability?
There are ways to discuss a plaintiff’s damages without agreeing that the damages will need to be paid.
In an auto accident case, a man’s hand was severely injured when the side door of his van closed unexpectedly on his hand, shattering several bones. The plaintiff was suing for a large amount in damages, claiming that the door was pushed closed by the defendant’s passing truck, and that he was permanently injured. The plaintiff claimed that the injury left him disfigured and so depressed that he could no longer be intimate with his wife or play soccer with his son.
The defense conducted a mock trial for this case and vehemently argued against liability. In the closing of its presentation, it also closed the circle of the case by discussing damages. First, the injury was conceded and the pain of having such an event happen was undeniable. That said, the defense argued, “the plaintiff’s damage claims are just one more example of how plaintiff is over-reaching in this case. Was his hand broken? Yes. Was it very painful and very unfortunate? Yes. Is the plaintiff still able to have a fulfilling life despite having his hand broken? Yes.” The jurors in the exercise saw the plaintiff’s damage claims as a pattern of trying to claim more than he deserved. Therefore, the damage argument strategy did not only work for damages, but also supported the liability case.
Does Discussing Damages Mean the Defense Will be Perceived as Callous or Uncaring?
Obviously, many injury cases will involve more than a broken hand. There are times when the injury is permanent and is undeniable. Typically, the issue in these cases is not the level of care needed, but the cost of that care. As a damage argument, it is typically (although not always) inadvisable to say that a severely and permanently injured plaintiff does not need “the best care” or can go for something more “cost effective.” That does typically turn jurors off. You can provide care alternatives for jurors, but a focus on arguing the costs of the care the plaintiff is requesting is typically more palatable to jurors when possible.
In another accident case, a woman had a head-on collision with a truck and was rendered quadriplegic. In the mock trial exercise, while not conceding liability (in fact, the defense claimed that the accident was the plaintiff’s fault), the defense spoke of the plaintiff’s damages, agreeing with the plaintiff’s injuries and with his life care plan. This defense spent its damage arguments on the economist’s instruction of “present value” in order to show jurors that the plaintiff’s top quality care does not cost what the plaintiffs were claiming it did. The present value testimony did appeal to jurors, who were impressed when they felt the defendant did not dismiss the plaintiff’s injuries. In this case, jurors also agreed that the plaintiff caused the accident.
Why Is Discussing Damages So Important?
There are no guarantees that a juror will find for you on liability. It is important not only to argue liability, but to mitigate damages as a defendant. With only one set of numbers for damages, that will be the only anchor jurors will have as reference for making their damage awards. When more than one set of damages are provided, jurors often use both sets of numbers to determine what is fair. The research has shown that providing those alternative anchors brings damages down … especially when done with compassion and without conceding liability.
Melissa M. Gomez, Ph.D. is a jury consultant and owner of MMG Jury Consulting LLC. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on more than 100 jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than a decade of expertise in research design and methodology, as well as in behavioral and communication skills training.
This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all.
If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.
Melissa M. Gomez, Ph.D.
MMG Jury Consulting, LLC
www.mmgjury.com
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