By Dave Zehner, Clarity Partners Trial Consulting In almost every contested liability case, one of the key strategic questions defense litigators face is what to say about damages.  Do you make an alternative damage award or not?  Often, the conventional wisdom suggests the answer is dependent upon how contentious the underlying liability issues are. According to this strategy, if there is a significant chance of a plaintiff verdict then an alternative damage argument should be made.  This strategy makes logical sense and was a viewpoint I subscribed to and suggested to clients for many years.  However, cognitive theory, supported by the results of over 16 matched test juror research exercises, provides substantial evidence that this strategy not only results in larger verdicts but also makes a liability finding for the plaintiffs more likely.

To understand why this seemingly logical and reasonable strategy that many seasoned trial attorneys feel has served them well may backfire, we need to look more closely at how jurors process information and make decisions.  When faced with the new information presented to them in a trial, jurors try to connect the new information they are receiving with information they already possess.  These information constructs are often referred to as “schema”.  Jurors then connect the schema into a “story” about the case through which they filter the evidence.  Evidence that connects with existing schema and fits into the “story” the juror has formed about the case is processed and used in decision making, while evidence that does not connect with pre-existing schema or fit into the “story” of the case is discarded.  The trial is a competition between the stories being told by each party.  Jurors form two competing information constructs in their brain, and the one that resonates better with their pre-existing schema is the one they use to make decisions about the case.  Evidence that makes a “story” inconsistent or unbelievable will cause that connection of schema to shatter and make jurors discard the evidence.  Once a juror discards one side’s story, he uses the other side’s story construct to guide his decision making.

Unlike lawyers, jurors do not split the case into liability and damages portions.  There is only the “case”, and evidence about liability and damages comingle to determine the frame of reference the juror uses for decision making.  Initially, there is  a battle in the juror’s mind over which “story” best fits the evidence as that juror sees it.  This decision making process explains why the decision to introduce an alternative damage award can cause jurors to discard the defense story.  Jurors expect each side of a trial to consistently and strongly argue their side.  When the defense discusses how much should be awarded in damages, this is “out of character” and inconsistent with jurors’ expectations.  It may cause enough dissonance to weaken the hold of the defense story or cause jurors to discard the defense story completely.

Our research strongly confirms this model of juror decision making.  In the course of conducting over 500 juror research exercises, we have tested this issue 15 times using a matched test methodology.  A group of surrogate jurors heard the evidence and arguments of the case, including summaries of expected testimony.  During this presentation of evidence, the “lean” of the individual jurors was recorded after each presentation.  The surrogate jurors told us, in writing, which side they were tending to support and if they strongly or somewhat supported that side.  (The question generally read “At this point, who do you tend to favor?”  The choices were strongly support the plaintiff(s), somewhat support the plaintiff(s), somewhat support the defendant(s), and strongly support the defendant(s).  The surrogate jurors were then split into two groups.  The groups were matched not only by “lean” (with each group having approximately the same number of “strong” and “weak” supporters of each side) but also by basic demographics (sex, race, age and education).  Both groups heard a defense closing that addressed the main defense liability arguments and attacked the logic of the plaintiff’s damage argument.  The only difference in the closings was that in one group the defense argued that because the jury would find for the defense they would not consider damages and therefore the law required them to give the plaintiff zero dollars in damages.  In the other group, the defense argued, through various different methods, that although the jury should find for the defense, if they did get to discussing damages, there were other numbers that were much more reasonable than what the plaintiff was suggesting.  The groups were then read instructions on the law and asked to answer individually who they tended to favor and how much, if anything, they would award in damages.  Each group then deliberated to a verdict.

In all sixteen research exercises, the results were striking.  In the group that heard the alternative damage award argument, more of the surrogate jurors individually tended to favor the plaintiff.  In addition, the median award given by the surrogate jurors individually before deliberations was also higher in this group as compared to the group that heard from the defense only that they should award no damages. In the deliberations, the groups that heard the alternative damage award arguments reached a consensus in favor of the plaintiff more quickly and awarded a higher damage award than the group that heard the zero dollar argument.  In five of the exercises, the group that did not hear the alternative damage award either hung or found for the defense, while the group that heard the alternative damage award always found for the plaintiff.  These exercises involved different types of cases and included medical malpractice, contract, patent infringement and personal injury matters.  Furthermore, the amounts requested by the plaintiffs and suggested by the defense varied greatly.  Nevertheless, whichever manner the alternative damage argument was presented, it always resulted in a worse outcome for the defense.  The bottom line is that making an alternative damage award argument not only resulted in a higher damage award but also made a plaintiff liability finding more likely.

When we conducted the first of these matched tests, the results surprised us.  Our expectation was that the damages would be lower in the groups that heard the alternative damage award, and that there would be little or no effect on the liability finding.  Once this finding was repeated multiple times, it became clear that the logic of making an alternative damage award was not correct.  Feedback from the  surrogate jurors was very consistent.  In deliberations about liability, the plaintiff leaning surrogate jurors argued that the defense “admitted they were guilty” when they discussed damages in closings.  While this was not a surprise, the response from the defense leaning surrogate jurors was surprising.  Instead of arguing that the defense damage number was more reasonable, they conceded that they “did not like” that the defense “admitted” that damages should be awarded.  This was often the reason why defense leaning surrogate jurors “converted” and agreed to go along with a finding for the plaintiff.  Once the discussion turned to damages, these “converted” defense leaning jurors often became advocates for much higher damage awards than the ones suggested by the defense in the alternative damage argument.  These surrogate jurors felt “betrayed” by the defense, and this “betrayal” caused them to flip completely to the plaintiff “story” of the case.  This dynamic was also confirmed by real jurors during post-trial interviews.  Defense leaning jurors reported that they “flipped” and agreed to a liability finding because of the defense alternate damage argument. These arguments not only failed to keep damages down, they also made a plaintiff verdict more likely.

These findings are consistent with the cognitive theory discussed above.  It is much more important for the defense to “stay in character” and argue what is expected of them (i.e., that the defense owes nothing), than appear “reasonable” by suggesting an alternative damage award.  If the defense makes perceived admissions in their closing about damages, it weakens the schematic connections in the jurors’ minds.  An alternative damage award does not persuade plaintiff leaning jurors because it does not fit with the “story” they are using to filter the evidence and make decisions.  Instead, it destabilizes and weakens the convictions of the defense leaning jurors who were processing the evidence based on the defense “story.”  This does not mean the defense should refrain from discussing damages.  The defense should always point out the logical inconsistencies of the plaintiff damage arguments.  These arguments reinforce the defense arguments that the plaintiff is overreaching.  The defense should also highlight evidence (e.g., current medical bills in an injury case), that may serve as “low dollar” anchors for defense-leaning jurors to use.  However, the defense should not be introducing its own evidence about damages.  It is counter-productive not only on damages but also on liability.