Aim Your Damages Defense at a Motivating Principle

Holland & Hart - Your Trial Message

Holland & Hart - Your Trial Message

On the virtual pages of this blog, I’ve long been a proponent of the idea of treating audiences for legal persuasion as active, not passive. What I mean by that is that they’re not just receptacles for your arguments, they aren’t just absorbing the facts and the evidence, and at the end, they aren’t just going to accept or reject what you’re giving them. They’re going to actively process it. While they might look passive as they sit listening, internally they’re actively doing something with their time and attention. They have a purpose, and it helps to think about what motivations might be driving your decision makers. 

One of jurors’ more important activities is to decide what goals they would be fulfilling in either awarding or not awarding damages in a civil case. I recently wrote about the ways defendants in particular should think about adaptations in how they argue against the possibility of high-dollar damages. One of my recommendations was to ask the question, “What would motivate a juror to not award damages or to award lower damages?” In this follow-up post, I’d like to unpack that advice to focus on motivating principles on damages, and to develop some thoughts on what kinds of motivators defendants might generally tap into. 

More than Math: What Are Motivating Principles? 

You can watch it happen in the deliberations phase of a mock trial: Once the group gets to the point deciding on damages, they aren’t just following instructions and calculating what the plaintiff has lost, instead they are working to further some implicit or explicit goals. When they’re giving money, they might be doing that in order to personally feel less bad about a tragedy at the center of the case. They may want to make sure the plaintiff is covered when it comes to unpredictable future expenses. They might be wanting the defendant to feel the consequences of their actions, or to send a message to others in a similar situation. The attorneys may not be allowed to appeal directly to motivations like these, but they can still be embedded in the language and the emphasis of the case. We might be used to focusing on these motivations on the plaintiff’s side – and we definitely ought to be aware of those potential motivators — but the idea of your jurors focusing on goals at the damages phase can apply to the defense as well.

What Are a Defendant’s Motivating Principles on Damages? 

Naturally, it depends on your individual case, and there’s no substitute for doing mock trial research where you can see jurors argue for and against a big award within the context of your own facts and narrative. But speaking broadly, I’ve seen mock jurors gravitate toward five main motivators across a variety of cases. 

Staying Grounded 

Jurors can get uncomfortable with the idea of applying a dollar value to an intangible category — some jurors will even refuse to do it. Most jurors, will prefer those categories that can be quantified. By focusing most or first on those categories, jurors reinforce their own desired self-perception that they are being grounded and guided by evidence, and are not being arbitrary or speculative. This motivation can lead jurors to prioritize economic over non-economic damages, and compensatory damages over punitive damages.

Preserving Social Functions 

If the defendant is involved in some kind of business, then that defendant does something that has a social value. A ski area promotes recreation, a hospital provides care, a manufacturer creates needed products, an insurance company helps by covering unexpected losses. Jurors might be motivated to continue to let that business do its thing by keeping it at least relatively free from onerous or exaggerated damage awards. 


If a defendant is perceived to have gained something through the actions that led to the claim in this case, the motivation might be to take back that gain. On the other hand, if the defendant did not gain, or even lost something already, then that motivation can be diminished or reversed. The argument that a defendant has “already paid for this” can help jurors feel that a big award is unnecessary or counterproductive.

Promoting Individual Responsibility 

Defendants might think of personal responsibility most naturally in liability contexts, but it applies to damages as well. Jurors might find themselves wondering, “What message does it send if the plaintiff walks away with millions?” And, by extension, “Maybe if we award less, that sends a message about their own mistakes.” An individual plaintiff’s actions may not rise to the level of considered contributory negligence, or that category may not be on the verdict form, but even without that option, a jury might still consider it at the damages phase. 

Avoiding Hardship

This motivator does not always play a role because jurors will often think the corporate coffers or the insurance company resources are infinite. But for an individual defendant, or a smaller company, or a public entity that will rely on tax dollars to pay any verdict, the effect of a larger award on that party might come up in deliberations. If jurors speculate that a big award would unduly hurt the defendant, or even be a company-ending verdict, then keeping the award grounded could have more appeal. 

Of course, none of these possible defense motivators are so strong that they can’t be quickly swept away by a jury that feels anger toward a defendant and who may even want to cause them a bit of pain. That is why defendants need to focus comprehensively on all motivators and not just those that apply to damages. 

Image credit: Shutterstock, used under license, edited by author

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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