March 2008
How to Discuss Damages at Trial–Without Getting Burned
By Hon. Mark A. Drummond, LITIGATION NEWS Associate Editor
Section leaders discuss the do’s and don’ts of damages
The jury recoiled visibly. Eyes rolled, eyes widened, jurors sat back in their chairs, and several looked to me. What had just happened? We were in a rural county that sits on the banks of the Illinois River. For the very first time, near the end of his closing argument, the plaintiff’s attorney asked the jury to award his client a million dollars. The verdict? After reducing the award for the plaintiff’s contributory negligence, the verdict was equal to the medical expenses and funerals costs—almost to the dollar.
“From the plaintiff’s perspective, if you don’t approach money from start to finish, at the finish, you truly are finished,” says Jeffrey J. Kroll, Chicago, a member of the Council of the Section of Litigation, who handles catastrophic personal injury cases. “I start in jury selection and ask the judge for wide latitude to go into the money issues. It is not uncommon for some jurors to have a ceiling and some will tell you, especially in smaller counties, that they will never go above a million dollars for any case.”
Kroll, anticipating objections, brings a brief outlining questions approved by appellate courts on liquidated damage issues. “You want to be the most prepared attorney in that courtroom,” advises Kroll. “I use the phrase, ‘in the millions’ in voir dire, may use it again in the cross of the defendant’s economic expert when I get him or her to agree that altering some assumptions would result in a number ‘in the millions,’ and then I only commit to a number or a range ‘in the millions’ in closing once I know the strength of my evidence.
“A downstate judge once told me that there had never been a verdict of over a million dollars in his county in a death case,” recalls Kroll. “In closing, I asked the jurors, ‘Why should a life be worth less here than in Chicago or St. Louis? I just got a Coke out of the machine and it was the same price as in Chicago. Gas here is only two cents cheaper than gas in Chicago. Why would a life be cheaper here?’” The jury returned a verdict of $2.6 million.
“For the defense, we are always walking a tightrope,” says Rudy A. Englund, Seattle, cochair of the Section’s Task Force on the Independence of the Judiciary. “In most cases, the defense wants to focus on liability rather than on damages, lest the jury think we are conceding liability. We realize many plaintiffs’ attorneys want to put up the big numbers with the hope that damages alone may drive the liability side of the case.”
Englund, who routinely defends large corporations, must confront the fact that the jurors know that large companies have a lot of money. “I will face the money bias head on and directly ask if they have bias against companies,” counsels Englund. “After trying to strike any juror with that bias, I don’t think that there is any formula for whether you address liability first and then damages, although that is usually the case. It just depends on your facts.”
Just as catastrophic damages may drive the liability side of the case, the reverse can happen. “We were defending a wage and hour class action,” recalls Englund. “The case was bifurcated and liability had already been found. The individual plaintiffs were given questionnaires which came back with numbers that were a total stretch. Follow-up depositions revealed even lower numbers and, at trial, the plaintiffs saw they needed to be even more realistic. We put all three of these versions before the jury. They came back with a finding of no damages. Even we were surprised.”
What You’ve Had to Say:
FEB 19, 2008 – This story is a direct parallel of my first jury trial. In a case where settlement demands ranged about $130K, the plaintiff's attorney asked for $750K during closing argument. I was blindsided, and I found out exactly what the expression meant to feel one's blood run cold--mine did! I put aside my notes for how to begin my closing agrument, and went to the core of my emotions at that moment, gambling that the jury's reaction to that demand would be the same as mine. I started with "I don't know about you, but plaintiff's demand just takes my breath away...." The jury returned a verdict of just of $30K, and placed my clients' share of liability at only 1/3rd--quite a step down from $750K! Probably, in large measure, the verdict was due to plaintiff's overreaching, which your story confirms.
