DAMAGES: THE DEFENSE ATTORNEY'S DILEMMA
by Jeri Kagel
Jeri Kagel (jeri@trialsynergy.com) is the principal trial consultant and owner of Trial Synergy, LLC in Atlanta, GA. She has a background in counseling psychology and law. Her work runs the gamut of civil litigation cases including complex product liability, medical malpractice, personal injury and divorce/custody cases to civil rights work and business litigation. You can learn more about Jeri and Trial Synergy at http://www.trialsynergy.com/.
Dilemma: a situation in which a difficult choice has to be made between two or more alternatives, especially undesirable ones. (Oxford American Dictionaries)
In every serious injury or death case, defense counsel faces the dilemma of whether, and how, to confront the issue of damages. Talking to the jury about gruesome injuries or the death of a loved one taps into every defense attorney's fear of appearing callous or cold-hearted.
Defense attorneys most often prefer juries to decide in favor of their client on issues of liability. Consequently, many believe that they are ceding liability if they talk about damages. Even in cases where defense counsel concedes liability, either by admission or tacitly, and damages take center stage, defense counsel often tread lightly on the issue of money out of a fear of appearing insensitive.
While I understand these fears, shying away from damages in catastrophic cases - or even in smaller cases - gives far too much power to the Plaintiff over the seminal issue in a case. Because of defense counsel's reluctance to argue damages, the only "damage story" jurors get to hear and evaluate is plaintiff's story. It is critical that defense counsel make damages part of their story and talk directly to the jury about money. With the right tools, defense counsel can openly discuss the issues of damages with integrity and compassion at the same time he or she convinces the jury to award less money or none at all.
Imagine for a moment that you are counsel for the defense in a personal injury case. It may be a vehicular accident, a medical malpractice case, product liability or simple negligence. The plaintiff has been injured or killed. The parties have been unable to reach a settlement and as a result, the case is going to be tried. Perhaps you have even done a mock trial or focus group to learn what does and does not matter to people whose attitudes reflect those of jurors likely to hear this case. At issue are your client's liability, the plaintiff's alleged injury, and the amount of damages the jury might award should there be a plaintiff's verdict.
Plaintiff's counsel will argue all issues, including damages, through creative voir dire questions, a strong heartfelt opening statement and thorough, passionate closing argument. Plaintiff's attorney does all this to register to jurors why their client deserves a lot of money and to insure, as best he or she can, that jurors understand the importance and reasonableness of what they are being asked to decide - including damages.
What's a defense attorney to do?
Over the last twenty years, I have heard a host of reasons defense attorneys choose NOT to argue damages, including:
"If I start talking to the jury about money, they'll think I've ceded liability!"
"Won't I be 'devaluing' the plaintiff's injury if I argue money? What will the jury think of me? If they think I'm heartless, won't they attribute that to my client as well?"
"It's too dangerous. Once I talk about damages, that's all the jury will think about and it will take away my credibility on liability."
"I don't want to suggest what a 'reasonable amount of damages' is when I think we have a strong case on liability and I don't think the jury should get to damages at all."
However, countless juries have proven these assumptions wrong. They are common misconceptions grounded in fears that may have sprouted from other lawyers' "war stories," personal experiences or even a plot on a TV legal drama. There may be a grain of truth in these fears. It may be that what did not work for another attorney will not work for you; it may be that there are dangerous ways to talk about damages; it might even be true that sometimes jurors will not resonate with your argument on damages. However, these same "truths" are also true when it comes to arguing liability. Some jurors will accept what you have to say, some won't, and some others may strongly disagree. Yet defense attorneys going to trial work to overcome those obstacles everyday. On liability.
Defense attorneys figure out ways to maneuver around possible negative juror reactions to their ideas about liability. They advocate for their clients even if theirs is a difficult story to tell or a difficult defendant to represent.
The same does not hold true for damages. With damages, defense attorneys are more comfortable opting out. It is my belief, and it has been my experience, that defense attorneys are not at risk if they argue damages, even dollar amounts. As we poll jurors, we learn that defense attorneys who confront the issue of damages head-on, and in ways I will talk about below, successfully obtain defense verdicts or significantly reduce the amount of money awarded without alienating the jury. In fact, jurors have often told us that they feel grateful to defense attorneys who have helped them put a voice to, and a "vote" for, their own discomfort with awarding either the amount plaintiffs were asking for, or any money at all. Once defense attorneys are willing to act differently by confronting the issue of "how much money," then our discussion moves from "whether to do it" to "how to do it."
We know a variety of ways that people (jurors) digest, comprehend and incorporate information provided to them generally and at trial more specifically. We know about the "primacy-recency" effect; we know about the importance of "repetition;" the importance of acknowledging 'the grain of truth' in your opponent's argument before debunking its most troubling aspects, and finally we know the importance of using the tools of good storytellers to engage jurors' hearts and minds. These and other communication skills work. Their importance is paramount when deciding how to present your case.
These tools, important when arguing liability, remain critical - and effective - when defense attorneys decide to address damages. This article explores four opportunities for defense counsel to address damages: Voir Dire, Opening Statements, Witness Testimony and Closing Arguments.
by Jeri Kagel
Jeri Kagel (jeri@trialsynergy.com) is the principal trial consultant and owner of Trial Synergy, LLC in Atlanta, GA. She has a background in counseling psychology and law. Her work runs the gamut of civil litigation cases including complex product liability, medical malpractice, personal injury and divorce/custody cases to civil rights work and business litigation. You can learn more about Jeri and Trial Synergy at http://www.trialsynergy.com/.
Dilemma: a situation in which a difficult choice has to be made between two or more alternatives, especially undesirable ones. (Oxford American Dictionaries)
In every serious injury or death case, defense counsel faces the dilemma of whether, and how, to confront the issue of damages. Talking to the jury about gruesome injuries or the death of a loved one taps into every defense attorney's fear of appearing callous or cold-hearted.
Defense attorneys most often prefer juries to decide in favor of their client on issues of liability. Consequently, many believe that they are ceding liability if they talk about damages. Even in cases where defense counsel concedes liability, either by admission or tacitly, and damages take center stage, defense counsel often tread lightly on the issue of money out of a fear of appearing insensitive.
While I understand these fears, shying away from damages in catastrophic cases - or even in smaller cases - gives far too much power to the Plaintiff over the seminal issue in a case. Because of defense counsel's reluctance to argue damages, the only "damage story" jurors get to hear and evaluate is plaintiff's story. It is critical that defense counsel make damages part of their story and talk directly to the jury about money. With the right tools, defense counsel can openly discuss the issues of damages with integrity and compassion at the same time he or she convinces the jury to award less money or none at all.
Imagine for a moment that you are counsel for the defense in a personal injury case. It may be a vehicular accident, a medical malpractice case, product liability or simple negligence. The plaintiff has been injured or killed. The parties have been unable to reach a settlement and as a result, the case is going to be tried. Perhaps you have even done a mock trial or focus group to learn what does and does not matter to people whose attitudes reflect those of jurors likely to hear this case. At issue are your client's liability, the plaintiff's alleged injury, and the amount of damages the jury might award should there be a plaintiff's verdict.
Plaintiff's counsel will argue all issues, including damages, through creative voir dire questions, a strong heartfelt opening statement and thorough, passionate closing argument. Plaintiff's attorney does all this to register to jurors why their client deserves a lot of money and to insure, as best he or she can, that jurors understand the importance and reasonableness of what they are being asked to decide - including damages.
What's a defense attorney to do?
Over the last twenty years, I have heard a host of reasons defense attorneys choose NOT to argue damages, including:
"If I start talking to the jury about money, they'll think I've ceded liability!"
"Won't I be 'devaluing' the plaintiff's injury if I argue money? What will the jury think of me? If they think I'm heartless, won't they attribute that to my client as well?"
"It's too dangerous. Once I talk about damages, that's all the jury will think about and it will take away my credibility on liability."
"I don't want to suggest what a 'reasonable amount of damages' is when I think we have a strong case on liability and I don't think the jury should get to damages at all."
However, countless juries have proven these assumptions wrong. They are common misconceptions grounded in fears that may have sprouted from other lawyers' "war stories," personal experiences or even a plot on a TV legal drama. There may be a grain of truth in these fears. It may be that what did not work for another attorney will not work for you; it may be that there are dangerous ways to talk about damages; it might even be true that sometimes jurors will not resonate with your argument on damages. However, these same "truths" are also true when it comes to arguing liability. Some jurors will accept what you have to say, some won't, and some others may strongly disagree. Yet defense attorneys going to trial work to overcome those obstacles everyday. On liability.
Defense attorneys figure out ways to maneuver around possible negative juror reactions to their ideas about liability. They advocate for their clients even if theirs is a difficult story to tell or a difficult defendant to represent.
The same does not hold true for damages. With damages, defense attorneys are more comfortable opting out. It is my belief, and it has been my experience, that defense attorneys are not at risk if they argue damages, even dollar amounts. As we poll jurors, we learn that defense attorneys who confront the issue of damages head-on, and in ways I will talk about below, successfully obtain defense verdicts or significantly reduce the amount of money awarded without alienating the jury. In fact, jurors have often told us that they feel grateful to defense attorneys who have helped them put a voice to, and a "vote" for, their own discomfort with awarding either the amount plaintiffs were asking for, or any money at all. Once defense attorneys are willing to act differently by confronting the issue of "how much money," then our discussion moves from "whether to do it" to "how to do it."
We know a variety of ways that people (jurors) digest, comprehend and incorporate information provided to them generally and at trial more specifically. We know about the "primacy-recency" effect; we know about the importance of "repetition;" the importance of acknowledging 'the grain of truth' in your opponent's argument before debunking its most troubling aspects, and finally we know the importance of using the tools of good storytellers to engage jurors' hearts and minds. These and other communication skills work. Their importance is paramount when deciding how to present your case.
These tools, important when arguing liability, remain critical - and effective - when defense attorneys decide to address damages. This article explores four opportunities for defense counsel to address damages: Voir Dire, Opening Statements, Witness Testimony and Closing Arguments.
After reading, "I dream before I take the Stand" it made me curious about defense attorneys and their job, so i did some research and found a lot of info about how much they make and the yrs of school required, but this article seemed suitable to blog about.
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