The Covid pandemic is now mostly in the rear-view mirror, but in now busy courthouses across the country, the juries who are returning seem a little different. Based on common experience, they appear to have more anti-corporate attitudes and to harbor greater suspicion toward large institutions. They seem to have less of a “sticker shock” reaction when plaintiffs make the big-dollar asks. And they’re prone to adapt a more punitive mindset (the case is about punishing someone more than it is about making someone whole) whether the trial includes an actual claim for punitive damages or not. This anecdotal experience seems to be borne out by the data. Both the size of median verdicts as well as the size of outlier verdicts, the so-called “nuclear verdicts,” are rising. This is something that we are seeing in every mock trial and in many of the actual trials we work on. My theory is that in the past, defendants could rely on a kind of bias: many jurors felt that damages in general were too high, and many felt that punitive damages were justified rarely or never. I’m not sure where those jurors have gone, but we are not hearing from them as much.
In this context, I’d argue that it is time for new thinking from defendants. I draw a parallel to times a little over a decade ago when the plaintiff’s bar collectively realized that their cases had been successfully painted as “frivolous,” with every case seeming to draw a parallel to caricatured understandings of the McDonald’s “hot coffee” case. Plaintiffs realized that it was time for new thinking, or perhaps to refresh some old thoughts, and the “Reptile” approach was born out of that concern. In light of increased pressure on the damages front, I believe defendants should be similarly searching for a new paradigm. Just as plaintiffs said, “we need a new message on liability,” defendants ought to say “we need a new message on damages.” Now, at present I don’t pretend to know what it is, but I am embarking on some research, some thinking, and some presentations. As a step toward that, I think that there are some essential elements that should be included in a defense damages mindset that is designed to meet the current times.
A new paradigm on defense damages should…
I think that sometimes defendants act as though plaintiffs are the only ones who can benefit from jurors’ motivations. For example, sympathy is going to pull them toward a plaintiff’s verdict, and defendants feel they can mitigate or minimize that motivation, but can’t counter with their own motivation. The “hot coffee” history, though, shows that there is a countervailing motivation. Jurors might want to preserve consumer freedom or protect businesses from unreasonable expenses. They may want individuals to have to face the consequences of their own decisions. It will vary case-to-case, but defendants should ask the question — and ideally research the question in a mock trial — “What would make a juror want to find for the defense or to keep damages on the low end?”
The social science pretty clearly shows that when jurors get to the point of deciding on damages, defendants are better off if they have shared their own “anchor” figure on what those damages ought to be. But employing a defense anchor shouldn’t mean just throwing out a number which is a fraction of plaintiff’s number (an act that implicitly uses that plaintiff number as an anchor as intended). Instead, defendants need to give their alternate figure careful attention, study, and research. Unlike the figures that might be used in mediation, it isn’t something you want jurors to see as a bargaining position. Ideally, it should have a foundation based in actual, here’s-the-receipt economic costs that you can quantify. The non-economic categories can then be anchored as a proportion of those actual costs. This plays to another juror motivation: to be concrete and to be grounded in the evidence.
Guard Against Implied Concession
Offering an alternate damage figure might seem so normal to defense attorneys that we take it for granted that jurors will understand its purpose. Don’t believe it. A handful of jurors may be savvy enough to understand that defendants offer an alternate number for the same reason we all get fire insurance: not because we want a fire, but because we want to be prepared if there is one. Most jurors, however, are prone to see it as an admission. In many recent mock trials, I have seen jurors take any discussion of an alternate number from the defendant as a concession, or even as an “offer” to pay at least that much. This happens despite defense efforts to put it in context. As a general rule, defendants shouldn’t introduce the alternate number with just a line or two about the conditional nature of the figure, but should devote a few minutes to a more complete explanation.
Respond to ‘Greed’
Based on the themes that many jurors accept from the plaintiff’s narrative, there is one reason and one reason only why the defendant is trying to avoid or limit damages: they want to make and keep more money. Apart from the fact that this theme cuts against plaintiffs as well, defendants should get creative in how they address that imputed motive. For example, other reasons could be in play: defendants might want to maintain services or quality without the limitations a verdict might impose; or they might want to stand for a principle that puts responsibility where they think it belongs. It is also possible to embrace a profit motive. While you won’t want to go full Gordon Gekko (“greed is good”) in front of a jury, you might want to emphasize that it is precisely the profit motive that encourages the company to be responsible and safe, and to meet or exceed regulations. It’s good for business.
And Dig in Your Heels on Liability When You Need to
As noted, the social science makes a convincing case that a defense anchor helps the defense if jurors get to the stage of considering damages. But, if you have a good shot at jurors not getting to that stage, you may want to bite the bullet and go anchor free, or to say the anchor is zero. There is a risk in doing that, but there is also a risk that giving an anchor could perceptually weaken what is otherwise a strong liability defense by making jurors think the defense may not be fully committed to a “no liability” verdict. Whether it is worth it will vary in every case, and there is no substitute for knowing your case, and having a good idea, from research, what jurors’ likely reactions will be.
That is just a short list on the principles to consider in revisiting the defense message on damages. The fundamentals are likely to stay consistent, but it does seem that the playing field has changed to some degree, and every defendant assessing their case or preparing for trial ought to take this into account.
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