Defense counsel’s closing argument matters.  As your “final word,” it requires serious thought and strategy.  There are four principles followed at Tyson & Mendes, LLP, which, if employed properly can effectively avoid unjustifiable and exorbitant verdicts, also known as Nuclear Verdicts® and compel a jury to better understand a defendant’s side of the story.

Robert Tyson, Strategic Managing Partner of Tyson & Mendes and author of Nuclear Verdicts: Defending Justice For All[i] trains all attorneys in his national defense firm on how to defuse juror anger and avoid Nuclear Verdicts® using his four defense tactics. Juror anger and emotion can misdirect jurors’ focus from the important parts of a case—the admissible evidence, the law as explained by the court, and a reasonable verdict based on that evidence and law.

Tyson employs the following as methods to avoid Nuclear Verdicts® in civil trials: accepting responsibility, giving a number, addressing plaintiff’s arguments regarding pain and suffering, and personalizing the corporate defendant. Tyson also discusses how it is critical to weave in themes of responsibility, reasonableness, and common sense.[ii]

Accepting Responsibility — What Does This Mean?

Even when pursuing a total defense verdict, one must accept responsibility to avoid astronomical verdicts. Accepting responsibility is not the same as admitting liability. Accepting responsibility means showing throughout the defense of the case, including closing arguments, that the defendant cares about the plaintiff.

What if the defendant is not liable at all? How does defense counsel, who wants a zero-dollar defense verdict, accept responsibility but still avoid liability for the client?[iii] By appearing reasonable—defusing juror anger—and shifting the focus to issues of actual fault.[iv]

Accepting responsibility without admitting liability is accomplished by acknowledging responsibility for the common duties for the defendant to act reasonably. For example, one who operates a business should accept responsibility for having a duty to provide a safe premises. This does not equate to the business owner being negligent and liable for an incident. One must also accept responsibility for driving one’s vehicle in a reasonably prudent manner. Acknowledging the duty to be responsible on the road is not an admission of driving negligently. Tyson mentions another example in his book—that of maintaining a safe work environment. Accepting responsibility to provide a safe work environment is not the same as admitting liability for an alleged wrongful termination.

Accepting responsibility on behalf of a defendant does not mean the defendant accepts fault or liability or that a client’s conduct fell below the applicable legal standard of care. By portraying the defendant as caring about the plaintiff, the defense shows the defendant is reasonable, responsible, and honest. Jurors will not be as angered by the allegations against defendant.

Conceding what you can, even when your client is not accepting liability, helps one appear reasonable during closing argument and defuses potential anger within a sitting juror, especially during closings, when the jury is about the decide the case.

When telling potential jurors a defendant is accountable, juries will connect with you and are more likely to return a verdict that is fair. When a defendant accepts no responsibility whatsoever, jurors may be enraged. As Tyson puts it in his book, plaintiffs’ counsel will “constantly attempt to enrage and provoke extreme emotions from jurors”, and employing the strategies of accepting responsibility and reasonableness will “puncture a hole in the ‘anger balloon’”, preventing anger “buildup” resulting in “balloon popping later” during deliberations.[v] Such anger, as Tyson puts it, is just one factor which motivates a “runaway jury nuclear verdict.”[vi]

Accepting responsibility shifts the focus of the case from the defendant as the “bad guy” to actual fault, including the theory of comparative fault throughout the defense of the case and in closing argument. Tyson suggests doing this early in the trial.[vii]

For example, if defense counsel accepts responsibility, they can then focus their time and juror attention on other parties, including plaintiff and their negligence. This is effective, especially when a plaintiff accepts no responsibility at all for their own actions and argues for a check with many zeros at the end. Jurors dislike it when the plaintiff accepts no responsibility. Quickly addressing a client’s responsibility and then focusing the closing on comparative fault of the plaintiff and others can reduce verdict amounts significantly.

Give a Number — Early, and Later in Closing

Tyson insists it is critical to always give a defense number.[viii] Plaintiff’s counsel will present jurors with their number over and over. King Solomon’s concept of “splitting the baby” can work here. A jury may believe half of plaintiff’s number would be fair if there is no counter presented.  For example, without a defense number, some jurors might, in the face of a $2,000,000 plaintiff’s number, think a $1,000,000 verdict is justice, when in fact, the case should realistically be valued at $250,000.  In closing argument, defense counsel should point to the testimony of their medical billings expert, life care planning expert, and an independent medical examination  to present a number which is reasonable, proven, and fair.

Although Rarely Ever Addressed by Any Counsel, Address Pain and Suffering Head On

Plaintiffs’ attorneys will routinely encourage juries to think about expensive things during their case in chief and also request juries award dollar amounts for each and every individual element of pain and suffering. Tyson points out the importance of how the law “does not say that the jury ‘must’ make an award for each element.”[ix] Plaintiff’s lawyer will list as many numbers as possible for past and future damages.

Defense counsel should counter this, especially in closing argument, by focusing on the impact a reasonable monetary verdict will have on the plaintiff’s life and by showing how this reasonable sum will make the plaintiff more than “whole” and will change the plaintiff’s life.

Reasonable verdicts can afford the plaintiff not only real solutions to the harms they face, but also more quality time with their family. Sometimes, $500,000 can make the plaintiff more than whole—it might even afford the plaintiff extra time with loved ones. If defense can persuasively show what their number will do for plaintiff, plaintiff’s $15,000,000 request may then look unreasonable and even fabricated.

Personalize Your Client

Empathy leads to understanding.  Tyson argues the importance of personalizing the corporate defendant.  This is accomplished by creating a human connection between the corporate client and the jury. Tyson also mentions the importance of explaining how every company is “made up of people” and how the business’s defense counsel represents affects and transforms communities.[x]

Defense counsel must, throughout their defense and in closing argument, explain that corporate defendants do this by giving jobs to people who have families.  To further extend this method of “personalizing the corporate defendant,” defense counsel should ask the judge to use California Jury Instruction 104 to instruct the jury a corporation is “entitled to the same fair and impartial treatment “as a human being.”[xi]

Additionally, defense counsel should also have a corporate representative available at trial, not a faceless “empty chair.” This leaves a lasting impression on the jury, showing them there is a face behind the business—a person who cares.[xii] Their mere presence can show the corporate entity places a value on its employees, and the effort and time devoted to the business.

Although Tyson mentions the importance of humanizing the corporate defendant from opening statements through voir dire, it is imperative to bring it full circle in closing arguments. The defense attorney should tell the corporate story and create a sympathetic defendant, not just a faceless corporation.[xiii] When the jury can empathize, understand, and connect with the corporate defendant, rather than perceive it as an impersonal money-driven entity, it can limit damages.

Key Takeaways

Use responsibility and reasonableness to your client’s advantage! Using themes of responsibility, reasonableness, and common sense in closing arguments allows for a greater opportunity for justice to prevail for all parties.  Being reasonable allows jurors to focus on the evidence admitted at trial, the law as explained by the court, real numbers, and the impact of a reasonable value on the plaintiff’s life, lessening the chances of a Nuclear Verdict®.

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Sources

[i] Robert F. Tyson, Jr., NUCLEAR VERDICTS, DEFENDING JUSTICE FOR ALL, 1^st Edition (2020), pp.1-200.

[ii] Ibid.

[iii] Id., p. 23.

[iv] Id. p. 20-32.

[v] Id. p. 22.

[vi] Id.

[vii] Robert F. Tyson, Jr., NUCLEAR VERDICTS, DEFENDING JUSTICE FOR ALL, 1^st Edition (2020), p. 23.

[viii] Ibid., p. 36.

[ix] Id., p. 73.

[x] Id., p. 119

[xi] Id.

[xii] Id.

[xiii] Id., p. 121-123.