When I was asked to California business attorneys address consumer attorneys about damages arguments that resonate with juries, I felt very important because I had been given the ultimate topic at the conference. Damages are the only remedy available in personal injury/wrongful death trials. They are the entire measure of the lawyer’s work. It’s also because “arguments” aren’t confined to the last hot, sleepy afternoon of the trial. California business attorneys will tell you that damages are built, brick by brick, from the first moment you set foot in the courtroom.
So, my topic is really, how to win big at trial.
The topic is not necessarily limited to statements that include dollar amounts and it is not limited to the argument phase of trial. When I started to work on this topic, I read all sorts of collections of transcripts and research papers on story-telling, jury psychology, demographics and the like. Then I ran into something that pushed the rest of the books off the table. It’s a book: David Ball on Damages, The Essential Update, A Plaintiff’s Attorney’s Guide For Personal Injury And Wrongful Death Cases (National Institute For Trial Advocacy 2d ed. 2005) (hereinafter “Ball”).
Most of this article will be based on my discussion with lawyers for work issues. In this article, I will try to hit the highlights. First, I will explain ten basic principles that affect jurors’ decisions about giving money. Then, I will list the things that motivate jurors to give money and a list of things that motivate them to withhold money. Finally, the website CrowdSource Lawyers will give you approaches that you can use during all phases of trial to maximize your damage award.
The Ten Basic Principles
David Ball tells us that ten basic principles shape the way jurors make decisions about giving money.
“Degree of harm and loss”
This is one of the elements that almost everyone recognizes is important. But many lawyers do not know how to maximize the picture of harm and loss that they convey to the jury. Ball asked one lawyer to list all the harms and losses his client suffered, and the lawyer said 1.) Death, 2 ) Loss of a husband, and 3.) Loss of a father – A guy died and his lawyer could think of nine words Ball teaches you to learn the full range of depth of your client’s harms and convey it.
“Worthwhileness of the money you seek”
This is one of the most useful points Ball makes. Money can’t sew back a severed limb or resurrect Mom. So if that’s all you are telling the jury to base the award on, they won’t be motivated to give generously.
Jury research has shown that jurors provide money when they think it will serve a worthwhile purpose. That’s fine when it comes to future medical bills. But, if you paint a hopeless picture of a plain-tiff so gravely injured that there is nothing that will help her, you are telling the jury that there is no worthwhile purpose to be served by awarding money for her pain and suffering. So they won’t.
Ball shows us how to identify and tell the jury about more worthwhile purposes that will motivate them to make generous decisions. Maybe the wheelchair-bound victim loved the woods and is stuck in a small city apartment. A small cabin in the woods, with a porch where she can park her wheelchair and look out at the woods, may return to her something she has lost.
Maybe getting involved in sports will help return some of the self-esteem your client lost when he was injured. A racing wheelchair may help undo the damage defendant caused.
Be creative in finding worthwhile uses for a monetary award. Spend time with family members. They will usually have no suggestions at first, but after some discussion they are likely to think of something. “My husband lies awake. I ask him what’s wrong and he says he’s worrying about how to pay for college for the kids now that he can’t work anymore…” In closing you can argue that therapy can’t fix him, but money for college tuition for the kids can remove the worry that the defendant caused.
Ball tells us that it is a mistake to tell the jurors that they are the “judges” or “deciders.” Those terms imply a cold rationality that does not emphasize caring. When an attorney instead conveys to them that their job is as “helpers,” “fixers” and people who “make up for” losses, this can deeply affect the way they approach the case and the magnitude of their award.
Find ways to tell them in voir dire and opening statement, as well as in closing, that their job is “to fix what can be fixed” – such as repaying lost income and medical bills – “to help what can be helped” – such as paying for therapy that will help but not cure, and “to make up for” (balance) what cannot be fixed or helped – such as past pain, or injuries that cannot be treated… Ball says this should be a primary theme in every case.
Ball points out that, whether it is a book, a sermon or a TV show, “it” is “about whatever it spends time being about.
Once they find liability, they will feel as if they have done what they need to do for you and will not attack the damages issue with the same force that they applied to liability.
In addition, some attorneys characterize liability as “defense turf” and damages as “plaintiff’s turf.” A sound strategy includes fighting on your own turf as much as possible. For this reason, Ball । counsels that you spend a much greater proportion of your time than customary during all phases of trial on damages.
Similarly, Ball warns against the common practice of saving your damages case until the end of the case in chief. He suggests it be woven conspicuously into voir dire and opening. He even suggests alternating liability and damages witnesses, one for one, from the beginning of your case in chief.
Many attorneys believe that the size of awards is heavily influenced by bad conduct by defendant. They are less willing to forgive conscious 1 choices. Thus, to maximize damages, try to think of ways in which to characterize defendant’s conduct not as negligently failing to do something, but as positively making a choice to do something: “John chose to take his eyes off the road to look for his cell phone,” rather than John didn’t look where he was driving.”