Part of the work of a defense attorney is determining if your client has potential liability for plaintiffs’ causes of action. Just as important, however, is determining a fair and reasonable number to compensate plaintiff for their damages. Plaintiffs’ counsel will always give an inflated number for their clients’ damages to anchor the jury early on to their valuation and story. For example, defense counsel may conclude plaintiff has suffered only minor soft tissue injuries, which required minimal medical treatment, with no need or recommendation for future treatment. However, when trial commences, plaintiff may still ask the jury to award six or seven figures for their injuries and pain and suffering. Why do plaintiffs’ counsel ask for huge figures when the evidence does not support such a verdict? Because it works for them.
Plaintiffs’ counsel will ask for high damage awards, and will do it early, because they have learned a jury is highly persuaded by an anchor number suggested by the plaintiffs’ attorney – regardless of whether there is supporting evidence. Plaintiffs’ counsel has tapped into the power of psychology in delivering their number, and the many Nuclear Verdicts® occurring every day across the country are strong evidence that it works! The best way to counter this effect and avoid a Nuclear Verdict® is to give a defense number. And when is the best time to give that number? Early and often. Presenting a number early is crucial to capitalize on primacy, the psychological phenomenon wherein people remember and rely on the first-presented information, believing it to hold more validity than later-presented information.[i] Presenting the same number often reinforces the validity of that number and takes advantage of recency, the psychological process by which information becomes more readily retained and relied upon when presented most recently.[ii] Put simply: the earlier and more often the jury hears the number, the more they will find it reasonable.
Voir dire is the first time a defense attorney should present a number. This allows the jury to get accustomed to the number. It also provides a starting point in determining if a jury is open to awarding a much smaller number of damages than what plaintiffs’ counsel is asking. For example, if you have determined $100,000 is a fair and reasonable number, you can ask the jury if they would be comfortable awarding that amount or less to see if they can be impartial. Ask potential jurors: If plaintiffs’ counsel asks you to award millions of dollars in damages, and the evidence supports plaintiffs’ damages to equal $100,000 or less, are you able to put sympathy aside and award plaintiff $100,000 or less for their damages? In addition to getting the number out there early and testing the jury pool to see how amenable they are to your number, it also allows you to begin repeating your number!
As trial progresses, it is crucial to continue to provide your number at all stages. Use trial evidence and testimony to further support your number. It may seem counterintuitive to give a number if you are going to ask the jury for a defense verdict, but research has shown the chances of getting a defense verdict actually increase when the defense sponsors their own number![iii]
In order to request a defense verdict while also giving a number, you can tell the jury the evidence will show the defendant does not have any liability in this matter, but if the jury is to consider damages, then the defense believes that the evidence will support your number as being fair and reasonable.
You may be wondering what this accomplishes. This is a crucial step in defusing juror anger, which is the primary driver of Nuclear Verdicts®! Asking for a defense verdict and providing a number that supports damages in the event the jury does not find a defense verdict makes defense counsel seem reasonable, building on credibility and allowing jurors to view the whole of defense’s case as more credible.
Before trial, it is necessary to give a lot of thought and consideration into the number you will give. You do not want to be in a situation where your number does not appear to be reasonable based on the evidence. Even worse, you do not want to be in a position where you must increase the number after it has been presented to the jury. The jury will not find defense counsel reasonable or credible if they increase their number, and defense counsel will lose all benefits of primacy and recency.
As the trial continues, you may question whether you picked the wrong number…but be firm! I have had trial where plaintiffs’ counsel asked for six figures when my number was less than $5,000 or less. The jury ultimately awarded plaintiff less than $5,000 in total damages. The jury awarded such a low amount because giving a number worked. The jury appreciates guidance and reasonableness, and it worked because the damages were supported by the evidence and testimony.
Giving a number is still controversial, but it is absolutely critical in order to defuse juror anger and provide a defense story that is reasonable and supported by the evidence. Psychology is not a tool designed only for plaintiffs! Our clients are deserving of the same thoughtful representation, and sponsoring a number, uncomfortable as it may be, is a key step in achieving justice for all![iv]
[i] See generally Glanzer and Cunitz (1966) Serial Position Effect
[iii] Campbell, J., Chao, B., Robertson, C., & Yokum, D. (2016). Countering the Plaintiff’s Anchor: Jury Simulations to Evaluate Damages Arguments.
[iv] Tyson, Robert, Nuclear Verdicts: Defending Justice for All (2020)