No one is promised a life without pain, despite what plaintiffs’ attorneys want juries to think. However, defense counsel often fails to present any rebuttal evidence or closing argument to assist the jury in determining the reasonable amount of the plaintiff’s pain and suffering damages.[i] When a jury returns a Nuclear Verdict®, the damages for pain and suffering (i.e., noneconomic damages) are often the largest part of the award to the plaintiff. Defendants should always argue pain and suffering because a sympathetic jury is far more likely to return an inflated and excessive Nuclear Verdict® when defense counsel fails to argue a reasonable noneconomic number based on the evidence presented at trial and common sense.[ii]

This article is intended to provide defense counsel with the tools they need to effectively use the Tyson & Mendes Nuclear Verdicts® defense methods to persuasively argue pain and suffering damages at trial to defuse Nuclear Verdicts®.[iii] By using the following methods in discovery, depositions, jury selection, and during trial, defense counsel can fight back against unreasonable plaintiffs’ counsel and defend justice for all.

1. Give a Reasonable Number to Anchor the Jury

Always give the jury a reasonable number to anchor them against a Nuclear Verdict®! This allows defense counsel to gain credibility with the jury and appear reasonable so the jury’s focus is instead on whether the plaintiff can meet their burden to establish the alleged damages. Whether the defendant is disputing liability or accepting responsibility, one of the most effective methods to defuse Nuclear Verdicts® is to anchor the jury by giving a reasonable amount based on the evidence at trial and common sense.

Even if liability is disputed, the jury may still find the defendant liable, and it is critical that they do not only hear a number from the plaintiffs’ counsel when they are deliberating on the amount of damages. However, defense counsel often fails to provide any number to rebut the unreasonable alleged noneconomic damages plaintiffs’ counsel ask for at trial, which may result in a disastrous Nuclear Verdict® and a very unhappy client.

Defense counsel should use information obtained in discovery and depositions, along with expert testimony, to determine the number to give as an anchor at trial. A good starting point is often to use a medical billing expert and retained expert doctors to calculate the reasonable cost of reasonably necessary past medical care, as well as the reasonable cost of reasonably necessary care that plaintiff is reasonably certain to need in the future.[iv]

Determining the reasonable amount of plaintiff’s economic damages can inform defense counsel on how best to articulate a reasonable amount for pain and suffering damages that can be argued persuasively at trial. Defense counsel should use their medical billing expert to “pull back the curtain” on unreasonable and inflated attorney-directed lien treatment. Most jurors have never heard of lien doctors and are often surprised to learn that plaintiffs’ counsel negotiates lower amounts with their lien doctors after trial—often using the defense medical billing expert’s report and testimony to do so!

In California, the jury is instructed that there is “no fixed standard” for deciding the amount of noneconomic damages and that they must use their “judgment to decide a reasonable amount based on the evidence and [their] common sense.”[v] The plaintiff may recover for “physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, [and] emotional distress.”[vi] To recover for future pain and suffering, plaintiffs must prove that they are “reasonably certain to suffer that harm.”[vii] Plaintiffs may be angry about the subject accident, but “anger” is not included in recoverable noneconomic damages.

The chances of a Nuclear Verdict® increase dramatically when defense counsel fails to anchor the jury, leaving the jury to deliberate without the necessary context to properly determine a fair amount of damages. If the jurors only hear an argument that the defendant should be found not liable, but are not provided a number to anchor against the excessive amounts argued by plaintiffs’ counsel, then they lack the necessary context to determine the reasonable amount needed to fairly compensate the plaintiff for pain and suffering that were caused by the subject accident.

For example, if plaintiff’s counsel argues for an excessive $50 million in noneconomic damages, but defense counsel fails to give a reasonable anchor number, then the jury may think that an award of $25 million is fair (the jury did reduce plaintiff’s alleged damages by half, after all). But this amount may still be grossly excessive based on the evidence and common sense, which is why defense counsel should always argue an anchor number in every case.

Defense counsel can also defuse juror anger by guiding the jury in applying the law to the facts using simple logic and common sense. Defense counsel should not be afraid to argue that a plaintiff is being unreasonable making a claim for $5 million in noneconomic damages when they only have $30k in total past medical expenses for relatively conservative treatment (e.g., physical therapy and chiropractic care without any major surgery) and have no future surgery planned years after the subject accident.

Defense counsel should apply the evidence and common sense to the jury instructions to show reasonableness and responsibility when arguing their anchor. Use the evidence to argue plaintiff is not reasonably certain to suffer the alleged noneconomic damages. Ask the jury to consider how far medical care has progressed in the last 50 years and how much further progress is reasonably certain over the next 50 years to counter the bleak picture argued by plaintiff’s counsel and to undermine their arguments and credibility. It never hurts to remind the jury that the law does not require them to forget their common sense when they enter the courtroom.

2. Personalize Your Client

Defense counsel also often fails to personalize their client, especially when defending a business or corporate client. Juries are far more likely to return a larger verdict against a faceless defendant than one they feel some connection to.

If you are defending a corporate defendant, tell the jury how the company was founded and how it grew to what it is today. Even some of the largest corporations started as small, family-owned companies or have a compelling backstory. The jury is less likely to return a Nuclear Verdict® when they feel like they know a corporate client on a personal level and feel some connection (or even admiration) for the work they do.

If you are defending an individual, find a way to tell the jury a compelling narrative that humanizes your client. Talk about the things that are most important to your client, like what they do for work, how they are connected to their community, or the ways they provide for the people they care about. Showing that a person is hardworking, caring, and responsible reduces the chances of an excessive damages award.

Show the jury the ways that your client is being reasonable and taking responsibility for their conduct. For example, if you are not disputing liability in a rear-end accident, show the jury your client acknowledges and accepts responsibility for any mistakes they made. All humans (and even jurors) make mistakes after all!

By doing so, defense counsel gains credibility with the jury while setting up a clear contrast between the defendant’s reasonableness and the plaintiff’s unreasonable damages claims and attorney-directed lien treatment. Juries generally respond more favorably to reasonable and responsible defendants (especially when they are clearly at fault), and less favorably to plaintiffs they perceive as unreasonable and greedy.

3. Argue How the Alleged Injuries Impacted the Plaintiff’s Life

Tell the jury the good news! Defense counsel often fails to present evidence and testimony showing how the plaintiff has recovered from the alleged injuries. Plaintiffs’ counsel loves to focus on the severity of injuries and often presents a dismal future for plaintiff. If counsel is arguing an “eggshell plaintiff,” then defense counsel must ask why to effectively argue against unreasonable pain and suffering damages at trial. Remind the jury plaintiffs are only entitled to damages “that will reasonably and fairly compensate” them for the harm caused by the defendant’s wrongful conduct.[viii]

Many plaintiffs have pre-existing chronic or degenerative conditions that are not related to the subject accident. Defense counsel should use their experts in accident reconstruction and biomechanics, as well as their medical experts, to argue whether the subject accident involved sufficient forces to provide a mechanism for the injuries plaintiff claims and the medical treatment they allege as a result.

Even if the plaintiff had a pre-existing condition that was worsened by the accident, the jury can only award damages “that will reasonably and fairly compensate” the plaintiff for “the effect on that condition” that resulted from the accident.[ix] Plaintiffs are not entitled to recover for any pain or degeneration of a pre-existing condition they would have experienced even if the subject accident never occurred.

In order to effectively argue how the alleged injuries affected plaintiff’s life, defense counsel must ask the right questions in discovery and deposition to prepare for trial. This also requires defense counsel to actually read the medical records and to discuss the alleged injuries or medical treatment with their experts, preferably before taking the plaintiff’s deposition. Use your experts to argue whether there is any evidence plaintiff suffered an acute injury that was caused by the accident or if there is any evidence of a pre-existing degenerative condition that may have been aggravated by the accident.

For example, defense counsel should always ask the plaintiff some version of the following in written discovery and depositions:

• When did the plaintiff first talk to a lawyer about the accident? Did they first see a lawyer or a doctor after the accident?
• Did anyone tell the plaintiff to see a doctor or a lawyer? How did they find the doctor or lawyer?
• Has the plaintiff undergone any invasive surgery? Can the plaintiff recall any discussions with their doctors before their surgery explaining why it was necessary? Did they ask their doctors any questions before agreeing to undergo surgery? Did they provide their doctors with a complete and accurate medical history before surgery?
• When was the last time the plaintiff saw a doctor? Was any of their past medical treatment particularly painful?
• Does the plaintiff have any future surgery recommendations? Do they plan to actually undergo any future surgery? What concerns do they have about the surgery? Why have they waited this long to get the surgery?
• Does the plaintiff feel that they have gotten better since the accident?
• Does the plaintiff think they will get better in the future? If not, why do they think more treatment or surgery will solve their problems?
• How has the plaintiff’s life changed since the accident?
• Did the plaintiff have to request any special accommodations at work due to their alleged injuries?
• What did the plaintiff do before the accident that they can no longer do as a result of the injuries they allege? How often did they do those activities compared to after the accident?
• Since the accident, has the plaintiff taken any vacations? Flown on an airplane, gone on a road trip, or taken a cruise? Visited any amusement parks? Participated in any sports or exercise? Attended any concerts or sporting events?
• What is the plaintiff’s passion in life? What are the plaintiff’s hobbies? What does the plaintiff do for fun?
• Why did the plaintiff file this lawsuit? What are they hoping to get out of the lawsuit?
• Has the plaintiff paid for any treatment out-of-pocket or suffered any financial hardship due to the accident?
• Does the plaintiff blame anyone other than the defendant for the accident?
• How would money help the plaintiff?

Do not be afraid to ask these questions because you cannot effectively impeach an exaggerating plaintiff unless you do. Defense counsel should point out that it strains common sense when the evidence—including plaintiff’s medical records and deposition testimony—shows substantial improvement, but plaintiff is still claiming outrageous future pain and suffering damages.

4. Present Evidence of Plaintiff’s Failure to Mitigate Damages

Did the plaintiff take responsibility to get better? If not, they likely did not meet their duty to mitigate. Plaintiffs have a legal duty to mitigate their damages and are not entitled to recover for harm that could have been avoided “with reasonable efforts or expenditures.”[x] The reasonableness of plaintiff’s efforts is based on the circumstances at the time, including their “ability to make the efforts or expenditures without undue risk or hardship.”[xi]

Defense counsel should point out examples of plaintiffs failing to mitigate damages, such as when plaintiffs delay seeking treatment after the accident, fail to follow their doctors’ recommendations, or have unexplained gaps in treatment. Plaintiffs also fail to reasonably mitigate damages when they continue to work without requesting any accommodations after the accident or engage in avoidable activities that unnecessarily aggravate their alleged injuries.

Defense counsel should also point out the specific complaints recorded when plaintiffs first sought medical treatment after the accident and highlight if any new complaints only materialized after plaintiffs’ attorneys sent them to their hand-selected lien doctors. Plaintiffs lose credibility with the jury when they are blaming others but do not listen to their doctors and fail to take action to get better.

5. Go Through the Verdict Form with the Jury During Closing Argument

As a rule of thumb, do not take anything for granted at trial. Jurors are often unfamiliar with the legal process and have never seen a verdict form in their life. Defense counsel benefit from using the jury instructions and verdict form to break down the different categories of damages. It is critical that defense counsel explain why the amount plaintiffs’ counsel argues is unreasonable based on the evidence, the law, and common sense.

Even when liability is disputed, defense counsel should explain the verdict form and break down the different components of the anchor number using the jury instructions provided by the court. Jurors are often left in the dark when trying to make sense of legal terms like “reasonableness,” “foreseeability,” and “reasonable certainty.” It is the lawyer’s job to make sense of these terms in a way that is clear and understandable to every juror.

An effective method of arguing the anchor number at trial is to show the jurors a filled-in verdict form with the various amounts defense counsel argued, and using the jury instructions to explain how those amounts are reasonable based on the evidence.

Takeaway

The last thing a defendant wants is for the jury to deliberate on damages after only the plaintiff has argued pain and suffering and given the jury a number at trial. Without anchoring the jury by applying the facts in evidence to the jury instructions, defendants set themselves up to be hit with Nuclear Verdicts® that are excessive and unfairly overcompensate plaintiffs’ attorneys’ inflated damages claims.

Jurors want to feel like they are making the right decision and to leave feeling good about themselves. Arguing pain and suffering allows defense counsel to counter the common tactics plaintiffs’ attorneys use to drive up excessive verdicts which then raise insurance premiums for everyone. By using these methods, defense counsel can stem the tide of Nuclear Verdicts® and empower jurors to stand up for justice against unreasonable plaintiff demands.

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Sources

[i] CACI No. 3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage). Judicial Council of California Civil Jury Instructions (2024 edition).

[ii] Ibid.

[iii] Robert F. Tyson, Jr., Nuclear Verdicts Defending Justice For All (2020).

[iv] CACI No. 3903A. Medical Expenses – Past and Future (Economic Damage). Judicial Council of California Civil Jury Instructions (2024 edition).

[v] CACI No. 3905A. Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage). Judicial Council of California Civil Jury Instructions (2024 edition).

[vi] Ibid.

[vii] Ibid.

[viii] CACI No. 3928. Unusually Susceptible Plaintiff. Judicial Council of California Civil Jury Instructions (2024 edition).

[ix] CACI No. 3927. Aggravation of Preexisting Condition or Disability. Judicial Council of California Civil Jury Instructions (2024 edition).

[x] CACI No. 3930. Mitigation of Damages (Personal Injury). Judicial Council of California Civil Jury Instructions (2024 edition).

[xi] Ibid.