Teaching Jurors to Calculate Loss
As trial lawyers, we may take for granted the considerations jurors account for in rendering their verdicts. Often times in plaintiff’s jury trials little to no attention is placed on educating jurors as to what they should or should not consider in formulating a plaintiff’s award. To that end we as attorneys need to change our mental framework from advocates first to teachers first and advocates second. In my opinion we ascertain greater credibility by teaching first and advocating second. If we advocate first before building credibility with our jurors then our arguments are useless. Teach first and then after building credibility go on to advocate, only after the jurors have learned to trust you can you persuade them.
One of the fundamental points we need to “teach” to our jurors is how to calculate losses. David Ball calls these damages “harms and losses”. We want to teach the jurors what factors should be considered and which should not. We can say that some factors shouldn’t be considered in reaching a verdict. We can even go so far as calling these same factors “illegal” or “improper” as that they are just that. Generally speaking jurors are going to take all sorts of improper notions into consideration. For instance, lots of jurors are reluctant to award large settlements because these jurors fear that this will inadvertently raise insurance rates. These higher insurance rates will then be passed on to the juror and his or her family and everyone else in the community. Jurors may be reluctant to award significant money because these jurors believe money can’t take away pain. There are a whole host of other reasons that jurors will take into consideration when deciding not to award a Plaintiff with money.
Thus, what we want to do is to first voire dire our jury pool to see which jurors are more likely to consider these “illegal” factors in making their determination. To do this we go to our tried and true “which way do you lean” type questions. The ideas is to ask the jurors questions in a very non-polarizing non-judgmental method. A good way to do this is by stating that “some people believe X while other people believe Y, which way do you lean?” When you ask a question like this you are firsts acknowledging that both beliefs are valid and accepted by many people. You then ask which way the juror “leans” so as to not require the juror to take such a polarized position. You want the jurors to feel free to speak up and thus you need to ask these questions in a very non-judgment way. Using the “which way do you lean” technique makes it easy for the juror to assert a position. Of course once they tell you which way they lean you need to be following that question up by stating “tell me more” again and again until you exhaust the jurors thoughts on the subject. So for example you could say, “Some people believe that injured people shouldn’t get money because money can’t make the pain go away, other people think it is good to give money for the harms and losses these people suffer even if it can’t make the pain go away. Which way do you lean”? Of course for these jurors who want to consider these “illegal” factors you need to flush out the entirety of their reasoning for their position. Do not try to persuade the juror to believe otherwise. Studies show that you will not be able to change the juror’s opinion. Furthermore, if you do try to change the juror’s opinion you will immediately stifle the other jurors from expressing their opinions on the matter. Focus on getting the juror to expound on his reasoning for considering the “illegal” factor. You are now set up to use a peremptory or cause challenge against this juror.
After you voire dire all the jurors on which way they lean regarding their consideration of illegal factors you can then tell the jurors what they are allowed and not allowed to consider in reaching their decision. Many of the jurors will get the point as you are conducting your initial voire dire, which is good. You want this theme to resonate from the beginning to end of the trial. When you tell the jurors what they can consider, harms and losses only, be sure to let them know that this is not your rule. Let them know this is the law. Let them know that the judge agrees and that opposing counsel agrees with this harms and losses only consideration. After you have the judge on board and opposing counsel you will have the jurors on board. Remember that it is far too early in the trial for the jurors to rely on anything solely coming from your mouth. So you are benefiting from two different things when you voire dire like this. First, you are determining which jurors you want on your panel while second, you are at the same time educating your jurors on the “harms and losses only” consideration. This is consistent with the same technique you will use in teaching the preponderance of the evidence rule to the jurors.
After you complete your voire dire you can move on to opening statement, examination of witnesses, and closing. In each of these stages you will continue to resonate your theme of “harms and losses only”. To do this you will weave this “harms and losses only” phrase in and out of your own statements at each stage in the trial. So for example, when you are conducting your opening statement you will tell the jurors that in reaching their decision as to the amount of money that the plaintiff deserves that these jurors should only consider the level of the harms and losses. You should tell the jurors that they can’t give money to the plaintiff because they “feel bad” for the plaintiff as this is an “illegal” factor. While in opening try to tell them not to consider factors which would otherwise benefit your client. In this way you build credibility with your jurors. You can of course name some “illegal” factors which would be detrimental to your case as well but if you focus more on excluding the ones that would help your case you build credibility with your jurors which is more important early on in the trial. When you describe the damages that occurred to your client you can say for instance, “the worst of the harms and losses which were caused to the plaintiff was X”. By repeating it over and over the jurors will begin thinking in terms of harms and losses. You can of course do the same thing on direct examination. Ask the lay witnesses about all the harms and losses to plaintiff which they have observed. “Would you say the social isolation was the worst of the harms and losses Mrs. Witness?”
When you get to closing you are going to tie the jury instructions together with your harms and losses verbiage. Do this using the same technique you employed for explanation of the preponderance of the evidence. Essentially you are going to place a big slide behind you showing the essential fragment of the jury instruction on damages. You then will tell the jurors that this word “compensation” they see in the jury instructions means harms and losses. You will tell them that compensation means balancing the scales. You can use your hands here face up as you do with your preponderance technique. Advise the jurors that in order to “compensate the plaintiff you need to balance the scales”. “To balance the scales you need to give enough money to make up for the amount of harms and losses.” At this point in closing you can once again tell the jurors about the factors they should not consider. Tell them not to compensate your client because they feel sorry for him or her. Again you are building credibility with jurors when you tell them this. Then go on to tell them some other factors which they additionally can’t consider such as that “the money won’t take the pain away” or that “the verdict will raise insurance rates”.
After you thoroughly teach the jurors about outside reasons and their prohibition you then need to go on to arm your jurors. You need to tell your jurors that they have a right to be on a jury that follows the law. And in order for them to do this they may need to enforce their rights. So tell the jurors that if they hear another juror discuss an outside reason, not related to harms and losses, that the listening juror should advise that juror that they need to follow the law. Remind the jurors that they have control even if they are not the foreperson. Tell your favorable jurors in closing that they need to call the judge if another juror insists on violating the law. This will empower your jurors and remind the other jurors that the judge will be called if they insist on not following the law.
This article was written for my own, Eric Roy, and my staff’s benefit. Virtually all of my learning on this subject comes directly from David Ball and Don Keenan who are authorities on modern plaintiff’s trial advocacy and two of my hero’s. These two have written several authoritative books on the subject and conduct seminars across the country. If you want a thorough understanding of the subject matter I suggest you purchases one of their many books which are comprehensive on the subject of modern plaintiff’s trial advocacy.