By Thomas M. O’Toole, Ph.D.
“I wouldn’t be doing my job as an attorney unless I addressed this next subject. It’s a tricky subject and defense attorneys like me always struggle to find the best way to talk about it. We clearly screwed up. Otherwise, we wouldn’t be offering an alternative damage figure. And by offering this alternative damage number, we are suggesting that this is the absolute minimum you should award to the plaintiff after you find us liable. Again, I’m just doing my job here. I don’t intend to suggest we believe we’re liable even though that’s essentially what I just told you.”
Word it however you like, but this is essentially what jurors hear when it comes to your presentation of alternative damage figures. Defense attorneys have struggled to find effective ways to counter plaintiff’s damage figures without appearing to implicitly admit liability. The struggle often results in failure.
This struggle involves two competing issues. On the one hand, every attorney can cite a horror story, whether their own or a popular urban legend, about a jury awarding a large damage figure because no alternative to the plaintiff’s proposed figure was offered. On the other hand, research overwhelmingly supports the “anchoring effect,” in which the defense’s alternative damage figure establishes the absolute minimum the jury is willing to award the plaintiff.
In addition to establishing the low anchor point, the defense’s alternative damage presentation often implies to jurors that the defense believes it is responsible. After all, some jurors argue, why would the defense suggest an alternative damage figure if it didn’t think it was liable? All of the caveats about defense attorneys “just doing their job” seem to be ineffective in helping jurors appreciate that alternative damage figures are not an admission of liability. And why would they be effective? In today’s world of supposed rampant corporate greed, jurors hold strong beliefs that no corporate defendant, for example, would be willing to pay money to a plaintiff unless the corporate defendant truly believed it was liable.
The problem with alternative damages presentations is that they often depart from the otherwise affirmative orientation of the defense story. In other words, defense attorneys (ideally) present an affirmative story of the case that shows jurors there is an entirely different and competing story of the case. However, the alternative damages presentation following this tends to revert the defense back to “yah, but…” mode. This is important because studies on combatting misinformation show that the “yah, but…” mode, which is a strategy of pure negation (i.e. “not that”), actually reinforces the misinformation. For example, if my opponent says “Jack is a jerk” and I counter with “Jack is not a jerk,” my statement of negation reinforces the prominence of my opponent’s view because, in the act of negation, it still manages to restate my opponent’s position. In other words, the statement that “Jack is not a jerk” still aligns Jack with the concept of being a “jerk.” Several studies have highlighted this trap and shown that the only way to overcome this is to offer an alternative affirmation: a completely different theory that shifts the view and focus on the issues. So, instead of arguing, “Jack is not a jerk,” one might argue, “Jack is a guy who works incredibly hard in a high-stress job to ensure that both his clients and his employees are successful.”
These studies on misinformation highlight the core problem with alternative damages presentations: they still place the plaintiff’s theory at the center of the discussion. They focus on the actual award rather than the motivation driving the award. In other words, in order to understand the defense’s alternative damages theory, jurors must start with the plaintiff’s theory on damages. A debate about numbers is a debate that is occurring on the plaintiff’s ground. Consequently, it makes sense that jurors would see alternative damages as an admission of liability and a suggested minimum.
In order to overcome the hurdles associated with alternative damages presentations, defense attorneys need to change they way they compartmentalize this component of the case. Damage presentations need a “story” that motivates and arms the trier of fact just as much as liability presentations.
In order to better understand how to craft a damages story, it is helpful to discuss the origins of damage awards. Damage awards are a product of one of two things: jurors wanting to compensate the plaintiff or jurors wanting to punish the defendant. From the perspective of this jury consultant, who has conducted hundreds of mock trials for defendants across the country over the past ten years, I am less concerned about jurors wanting to compensate the plaintiff. Sympathy does not drive large verdicts; anger does. However, I will address both elements in the remainder of this post.
Let’s focus on three key opportunities to influence the story that emerges on damages. The first opportunity for combatting large damages is in jury selection. Instead of “selling your case” in voir dire, focus on identifying attitudes and experiences that may lead to inflated damage awards. On the sympathy side, defense attorneys want to identify and remove people who:
- Would have difficulty being part of a verdict where an injured party did not receive money;
- Tend to think with their heart rather than their head;
- Work in fields such as health care, therapy, etc. that help them appreciate the costs of long-term care. For example, physical therapists commonly run up against funding issues for patient needs (obviously, this is specific to personal injury cases).
On the anger side, defense attorneys want to identify and remove people who:
- Believe large damage awards are the best way to change behavior;
- Believe it is often necessary to make a big deal out something small in order to “send a message” to others;
- Believe large damage awards are a “drop in the bucket” for large corporations.
While these lists are certainly not exhaustive, they cover some of the core sympathy and anger issues that drive large verdicts. On the anger side, while many cases and/or states do not have punitive damages, these items still need to be addressed since jurors often use noneconomic damages as a way to punish the defendant even though they might be instructed otherwise.
The second, crucial opportunity for combatting large damage awards is with key defense witnesses. The key defense witnesses represent “the face” of the defendant and jurors’ perceptions of them directly influence motivation to “send a message.” Medical malpractice litigation is particularly instructive here. Likable doctors rarely get hit with large damage awards no matter how bad the evidence is. Key defense witnesses accomplish several things: 1) They establish the likability of the defendant; 2) They help the jurors understand whether the defense “gets it” or “needs to be sent a message”; and 3) They shed light on the mindset of the defendant at the time of the series of events at the heart of the case. All of these components are vital to controlling damages. Unfortunately, many key defense witnesses do not receive adequate preparation for their testimony. When preparation does occur, it often consists of sitting in a room and talking about the issues for several hours rather than actually practicing the testimony. This is significant because the witness’s overall presentation (vocal, visual, and verbal) is infinitely more important than just what the witness says and factors into each of the three items identified above. Anyone in any sort of relationship knows that how one says something is so much more important that what one says. The same applies to witnesses. (You can read more about proper witness preparation techniques at: https://soundjuryconsulting.com/files/publications/Arming_Witnesses_for_Success.pdf
Finally, the defense needs to craft a central statement about what the verdict accomplishes. Damage awards are statements by jurors, so the defense needs to craft its own statement. This establishes the core principles that guide the discussion on damages and, consequently, controls the motivation to award damages. Defense attorneys should start with a simple writing activity in which complete the following sentence in some sort of defense-oriented fashion: “A damage award that says…” Complete as many iterations, from as many different perspectives, as possible. The goal is to create a simple sentence that identifies the psychological satisfaction that comes with awarding a low damage figure. Here are a few examples:
- A damage award that tells the plaintiff that a lawsuit is not an opportunity for a windfall;
- A damage award that tells the plaintiff that, with accusation comes the responsibility to prove the damages (s)he claims (s)he suffered.
- A damage award that recognizes the rare and unforeseen nature of what happened.
- A damage award that acknowledges the defendant did everything reasonably possible to help the plaintiff.
- A damage award that tells the plaintiff (s)he can’t have it both ways.
Obviously, some of these statements are specific to certain types of cases, but I think they at least highlight the general orientation these statements should have. Once a defense attorney has drafted several iterations, select one that best represents the narrative opportunities of the damages component of the case. This statement should then be used to guide the decision-making process on how damages are addressed and presented at trial. For example, this statement can guide questions in direct or cross examination by establishing and highlighting the rhetorical environment or context in which the questions should be asked.
The point is that the failure of many alternative damages presentations can be attributed to the fact that these presentations just address the numbers, not the motivation behind the numbers. This leads to a “yah but” tone that only serves to reinforce the plaintiff’s damage theory. If defense attorneys can control the three steps identified in this post, they can control the amount of damages awarded, if any are awarded. As for the question of how to talk about the actual alternative damages figure or whether or not to even present one, I often recommend a formula strategy. In other words, rather than offering an alternative number, which risks establishing a minimum award, propose an alternative process for determining a damages award without giving a specific number. Use the jury instructions and the expert analysis to show jurors how they can go about determining a damage award if they get that far in deliberations. It is difficult to provide specific how-to’s in this post since the process varies from case to case, but every case has opportunities for crafting an alternative process for determining damages that exerts downward pressure on the final number, if one is awarded at all.