If you represent the plaintiff, the verdict you want the jury to bring in is a finding of liability and comprehensive damages. In the present era of litigation where difficult and enormously costly barriers and hurdles have been placed in the way of a plaintiff seeking to recover, it is not economically feasible for plaintiff’s counsel to recommend that a client pursue a claim without very substantial damages. It seems axiomatic that the larger the award required to compensate a plaintiff, the greater the burden of persuasion.
Persuading a jury to bring in the verdict you want obviously begins long before closing argument: without the proper foundation, an “effective closing argument” is impossible. It is not the purpose here to discuss how to prove liability or damages as a predicate to having the jury “bring in the verdict you want,” but rather to provide some ideas for when, and how, it might be beneficial to ask the jury to award a specific amount of damages.
Trial strategy always involves the question of when and how to broach the subject of damages with the jury, and whether “numbers” should be mentioned, suggested or requested. This discussion should include the question of whether the jury should be asked to return a specific amount of damages and, if so, how that should be done. Careful consideration must be made, because if done ineffectively or in inappropriate circumstances, you risk alienating the jury – resulting in the jury bringing in a verdict you do not want!
For a plaintiff attorney, there is no wisdom in taking cases that are weak or questionable as to the merits, or to retain mediocre expert witnesses to support the claim. Nevertheless, having a strong, meritorious claim supported by highly qualified experts does not provide any assurance a case will be settled, or if tried, there will be any shortage of qualified defense experts willing to defend the case. However, having justifiable confidence in your case and how it will play out at trial – and not just wishful thinking – is a requirement for considering whether to ask a jury to award a specific amount of damages. This is because your ability to get the jury to respond favorably to a request for a specific damage award is largely going to be a function of your credibility.
One of the most frequently asked questions by prospective jurors during voir dire is “how in the world can we be expected to determine what appropriate damages are?” in the event liability in the case is proven. The standard, formulaic response is that counsel and the court will provide the jury with some guidance through evidence, argument, instructions of law and otherwise, and that the collective wisdom of the jury will be relied upon by the parties to do what is right. What the jurors hear amounts to “blah, blah, blah.”
The very asking of the question reveals that the jurors clearly want help in answering this question. As long as you begin and end the trial with credibility, there is no reason why you should not be the person they can rely upon to answer that question. This is especially true since the court will not even approach answering the question despite the convoluted legal mumbo jumbo contained in the damage instructions.
If the trial goes as anticipated, defense counsel should have far less credibility than you in the eyes of the jury. After all, it was you who told the jury that the evidence would prove the defendant was negligent. Defense counsel denied the evidence showed negligence, wanted the jury to ignore that evidence, and refused to accept responsibility for her/his client. Having kept your promise, you hold the high moral ground; why should the jury believe defense counsel on the issue of damages if s/he was not worthy of belief on the issue of fault? In closing the jury should be reminded of any concrete examples where defense counsel improperly represented the evidence to the jury, or of concessions obtained from defense experts calling into question the general credibility of the denial of responsibility.
But, the ability to credibly ask for a specific monetary award begins long before the closing. Start, for example, with civil rule 8:
Rule 8. General rules of pleading
(a) claims for relief. A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a demand for judgment for the relief to which the party claims to be entitled. If the party seeks more than twenty-five thousand dollars, the party shall so state in the pleading but shall not specify in the demand for judgment the amount of recovery sought, unless the claim is based upon an instrument required to be attached pursuant to Civ. R. 10. At any time after the pleading is filed and served, any party from whom monetary recovery is sought may request in writing that the party seeking recovery provide the requesting party a written statement of the amount of recovery sought. Upon motion, the court shall require the party to respond to the request. Relief in the alternative or of several different types may be demanded.
It is a violation of the civil rules to file a “$15 million lawsuit,” despite the fact that it is frequently done as evidenced by newspaper headlines. If a plaintiff seeks more than $25,000, the complaint “shall so state.” Of concern to this discussion, a defendant can compel the plaintiff to provide “a written statement of the amount of recovery sought.” Presumably, this relates to a defendant’s legitimate need to determine, inter alia, whether there is adequate liability insurance coverage available. However, a cavalier response should not be made, and precautions always taken, whenever such a statement is requested, regardless of the monetary amount set forth. A proposed response to this request is set forth below:
Objection: plaintiff is not legally competent to respond to this request. Furthermore, there is no requirement that a plaintiff ever specify or request a precise amount of general damages sought to be awarded by the jury, and plaintiff reserves the right not to do so. To the extent this request seeks information not related to special and/or economic damages, it also seeks to invade confidential attorney-client communication, and/or privileged attorney work product and trial strategy. Moreover, plaintiff may not know until the conclusion of presentation of evidence at trial what award of damages is supported by the evidence. Notwithstanding the foregoing, and without waiving objection, based on the evidence as presently known, plaintiff states that s/he may seek [$ amount ] in damages at the trial of this case. Inasmuch as pleadings are not evidence, plaintiff further objects to any mention and/or attempt to introduce at trial the response to this request for statement of damages. This amount is not to be construed as a settlement demand and has no bearing on the good faith effort of plaintiff to settle this matter.
The concern, of course, is that an effort will be made by unscrupulous opposing counsel to use the response for any purpose beyond assessing adequacy of insurance coverage, particularly at trial. If a plaintiff cavalierly sets forth an “outrageously” large “recovery sought,” any manner of communicating this in any fashion to the jury by opposing counsel could have a devastating effect on the plaintiff, in the eyes of the jury. Thus, the response to this “request for statement of damages sought” should be made the subject of a motion in limine so that opposing counsel does not “inadvertently/unintentionally” mention it in the presence of the jury.
Notwithstanding the foregoing qualifications to the response, a well thought out response can have a favorable impact in the event a verdict comparable to the response is obtained and a motion for prejudgment interest is pursued. It is suggested, therefore, that considerable care be given to the response. Similarly, as trial approaches and settlement negotiations are explored, a consistent and measured initial settlement demand, which is characterized as the upper range of a potential jury verdict range, if proven to be reasonable by the jury’s eventual verdict, can add further support to a claim for prejudgment interest.
Moving toward the actual trial itself, the questions loom:
- Should I ask the jury for a specific amount of damages?
- If so, when should I first discuss an amount?
- How should I approach the issue?
It should be understood that asking for a specific amount is the exception, and not the rule. In the typical case you want to provide the jury with some guidance without appearing to be attempting to invade their province and telling them what to do. The answer to the first question, therefore, depends on any number of circumstances. A few of these factors are set forth below:
- Are the operative facts underlying your theory of liability largely undisputed, or strongly supported by the evidence?
- Is your liability case strong? (if facts are proven, do they strongly suggest negligence?)
- Does the case have facts that may provoke the ire of the jury?
- Does your client have finite, objectively supported special/economic damages?
• Does the magnitude of the injury far exceed the special damages?
In general, the circumstances described above indicate that you, as advocate for the plaintiff, will be able to tell the jury what the facts are, and be proven absolutely correct. Conversely, to the extent defense counsel has refused to admit those facts, his/her credibility will be diminished. If the defendant is on record denying facts that have subsequently been proven to be true, this should be emphasized. This sets up a situation where the jury will justifiably and confidently look to, and rely upon, you to answer the question, “how in the world can we be expected to determine what appropriate damages are?” As long as the requested damages are reasonable given the magnitude of the injury, defense counsel really has nothing to offer the jury, and a challenge to defense counsel to comment on a damage request in rebuttal is often ignored for obvious reasons.
This reliance on you, and rejection of any position the defense takes with regard to damages, is further enhanced if facts are proven that reflect adversely not just on the conduct of the defendant, but on his/her character. While defense counsel can fairly be expected by the jury to argue about the facts in advocating on behalf of his/her client, it is a major problem for defense counsel to have to be able to vouch for a defendant whose conduct – in the underlying circumstances of the case, in discovery, or during trial – is offensive in any way. You want the jury to ask defense counsel, even if only subconsciously, “why should we listen to anything you have to say on behalf of this defendant?”
When special damages are well-defined and finite, and the major aspect of the damages claim is general damages – the all-encompassing “pain and suffering” – jurors are particularly desirous of assistance in answering the question “how in the world can we be expected to determine what appropriate damages are?” The defense is really not in any position to credibly offer an opinion on this: the defendant does not suffer from the injury and defense counsel’s mission is to minimize his/her client’s responsibility. The jury needs to be reminded of this and defense counsel’s argument should be carefully scrutinized to avoid the impermissible “expression of personal opinion” by counsel.
As to when and how a specific damage amount should first be discussed, it is suggested that the process begin during voir dire. It is always important to inquire of jurors whether they have any perceived damage award beyond which they would not consider awarding, regardless of the evidence and the court’s instruction on the law. When a juror responds to this – and regardless of the nature of the response: “No”, “I don’t know”, or “Yes” – an appropriate segue is as follows:
- “For example, let’s assume a person bringing a claim has $5 million in damages. Would you have any hesitancy to make an award of damages in that amount, simply because of the size of the award”
You have implanted the idea of making an award of $5 million without tying it in any way to your client’s case. You are simply making an academic inquiry at this point about the juror’s willingness to follow the law and consider an award, regardless of the size of the award. To make it easier for jurors to grasp the concept of awarding $5 million, this line of questioning could be premised on a hypothetical involving a $5 million building that burned to the ground because of a defendant’s admitted negligence.
Listen carefully to the prospective jurors’ responses. Remember, they have all been sworn by the court to speak the truth, and their responses are a matter of the official record that all the prospective jurors have heard. In this regard, they can be in some sense as “witnesses”. When a prospective juror has said “absolutely, in the right case, assuming there are serious injuries and the defendant’s responsibility for the injury is proven, I would have no problem making such an award,” you now have the juror establishing the criteria you must meet to ask for such an award.
After the jury has been seated, during opening statements plaintiff’s counsel should circle back to the juror’s comments during voir dire:
- “As you will recall, during voir dire I asked each of you whether you would be willing to consider making a large award of damages, as high as $5 million, if the evidence and the court’s instructions on the law supported such an award. Each of you indicated that you would have no hesitation in making such an award. That was not just a hypothetical or academic question, because we firmly believe the facts of this case, and the severity of Mrs. Smith’s injuries justify an award of $5 million. And, at the conclusion of this case, we will be asking you to award Mrs. Smith $5 million.”
By taking this approach, you have obviously staked yourself out to meeting your burden of proof and maintaining your credibility. But, if you have thoroughly conducted discovery, properly analyzed your case, are prepared for trial, and desensitized the jury, this should not be considered a high stakes gamble. There is no reason why you cannot stand up during closing argument and address this issue head on:
- “I started this case during voir dire discussing the issue of damages. You all stated your collective willingness to consider a substantial verdict, as much as $5 million should the evidence support such a verdict. During opening statement we also talked about damages, and I reminded you of our discussion in voir dire about awarding damages of $5 million, and why I felt such an award would be proven, justified and reasonable in this case. I told you that at the end of the trial I would be asking you to make an award of $5 million. And during the course of this trial, I have not heard a single piece of evidence that suggests that an award of $5 million is not appropriate.”
Assuming you have properly analyzed and prepared your case, and there is no risk of having to back down from your consistent assertion about damages from the outset of the trial, there is no reason why the jury should not feel comfortable looking to you for guidance and “bring in the verdict you want.”
If the jury accepts your recommendation, and the verdict is consistent with your response to a Civil Rule 8 request for statement of damages and/or your settlement demand and negotiations, you will also have gone a long way to preserving the amount of the verdict against attack on appeal, as well as establishing the basis for prejudgment interest.
Gerald S. Leeseberg