Persuasion Matters

Finding Scrooge: Tips for minimizing damages in Defendant voir dire.

As a Defendant in the courtroom faced with multi-million-dollar damages, don’t you wish the frugal, penny-pinching jurors could be identified by you and only you?  Some sort of telepathic signal to communicate, “Hey! I don’t like big damages!”

I think Defendants have a more difficult task than Plaintiffs when it comes to evaluating juror attitudes and opinions on civil damages.  Not only do they need to identify dangerous jurors, but they also need to identify fiscal conservatives. After all, should the jurors determine that a damage award is appropriate, dollars will be discussed.  All other things being equal, who would you rather have deliberate?  A frugal, fact-motivated juror or an emotionally-driven, let-me-open-my-wallet juror?

Our last post, “Show Me the Money!” discussed the art of addressing damages during Plaintiff voir dire. But what’s a Defendant to do? How on earth can you identify the quintessential fiscal conservatives without identifying obvious Plaintiff strikes?  Here are a few suggestions.

Attitudes about Lawsuits.

The topic about lawsuit attitudes is frequently raised during Plaintiff voir dire in an effort to weed out folks who think folks are too litigious.  But make no mistake, it has tremendous value for Defendants too.  Here’s the deal: for years, the data gleaned from jury research has consistently revealed that the majority of jurors believe that there are too many lawsuits.  So why bother asking about it during Defendant voir dire?

Consider the impact of this question:

Mrs. Jones, how do you feel about the number of lawsuits being filed in the U.S. courts?

If you ask this open-ended question to a few targeted jurors, I’ll bet a dollar that most voice a belief that there are too many lawsuits, people are too quick to file or damages are too high.  But guess what?  You’ve just flagged potential strikes for your opponent.  However, if you modify that question ever-so-slightly, you can protect your good jurors.

Please raise your hand if you believe there are just too many lawsuits being filed in today’s courts?

Since jury research suggests that the majority of  hands will go up in the air,  opposing counsel really can’t identify any strikes.  You essentially hide your good jurors in a sea of hands.  It’s basically a “gimme” question with a few underlying benefits.

  1. You plant a seed that there are too many lawsuits.
  2. You demonstrate to opposing counsel that a significant portion of the panel generally believes there are too many lawsuits.
  3. You protect your good jurors.
  4. And (assuming you have extra eyes and ears on your trial team observing the panel) you can quickly search the panel for jurors who fail to raise their hand, as these are the folks who could be high-damages jurors.  Sure, some jurors will just be too apathetic to participate, but a handful could be dangerous.

It’s a win-win.  Quietly flag the no-hand jurors for future follow-up on more sensitive, case-related issues.  No sense asking them to explain why they did not raise their hand, as you risk exposing a good juror (Plaintiff strike).  At the end of the day, if Plaintiff needs to know more, he can request individual voir dire from the court.

Ideally, this sort of query would be contained on a supplemental written jury questionnaire, but you can certainly ask a forced-choice question in oral voir dire.  Just be sure to phrase your question in a way that hides your good jurors.  Here’s a sample query for a written questionnaire:

Jurors who answer “about right” or “should probably be more” are potentially dangerous for a Defendant.  Should they be an automatic strike based solely on that answer?  I wouldn’t advise it, but get the juror talking about other issues and if desired, try to establish grounds for cause.  I wouldn’t fret too much over those who answer “it depends.”  Typically, these jurors simply do not want to commit, which suggests an ability to hear both sides of the story and to consider everything on a case-by-case basis.

Attitudes about Damages

Another “gimme” question relates to juror attitudes about lawsuit damages.  There are hidden benefits to asking a query about this issue because jury research suggests that the majority of jurors view damages as being “too high.”  Those who do not hold this belief (or something close to it) are potential high-damages jurors.

If two or three specific jurors are asked an open-ended question, usually someone will admit feelings that damages are excessive.  Occasionally the infamous McDonald’s coffee verdict is even mentioned.  Because these jurors are potential plaintiff strikes, asking a large-group question or a forced-choice question is often the better strategy.  It enables you to reap the same benefits discussed above while hiding your good jurors: thematic programming, having a sea of hands admitting an anti-Plaintiff sentiment, and the ability to subtly identify potential high-damages jurors.  For example:

Based on media reports and your own personal knowledge, please raise your hand if you feel that generally, damages in lawsuits are too high.

Here is a standard question I try to include on every single written questionnaire.  It can also be asked in oral voir dire, but be sure to focus on the answers you need (as opposed to the answers you want).






Additional Queries to Help Minimize Damages or Establish Cause

Truth be told, when I’m consulting with a defense team, I typically discourage counsel from spending too much time discussing monetary damages. Of course, every case is different, and there are some cases, some venues, some circumstances that merit a more in-depth discussion of damage-related issues.  Here are a few additional suggestions.  The language is simple: it is conversational and also conveys a sense of safety and trust (at least that’s my hope).  Jurors typically will be honest and vocal if they trust you enough to accept their answer without judgment.

This is an emotional and difficult case because we are dealing with the death of a child.  There isn’t a person involved in this case on either side who doesn’t feel sympathy and sadness for the Plaintiff.  Mrs. Jones, based on your recent experience of [insert whatever you have learned], do you think it might be hard for you to set sympathy aside and reach a verdict based only on the facts?  Do you feel a twinge in your heart that the Plaintiff should receive at least some money as compensation for her troubles and for the time and energy she invested in this lawsuit?

Mr. Garcia, how comfortable would you be looking [insert name of Plaintiff] in the eye at the end of the trial and saying, “[Plaintiff], I am so sorry for your loss, but based on the evidence in this case, I cannot award you any money.”  Is this something that you could do?

Mr. Smith, how difficult would it be for you to face your nursing friends at work next week and tell them that you did not award a fellow nurse any money in his lawsuit for wrongful termination?

Which is more important to you: compensating an injured person or determining who or what actually caused the injury?

You’ll all heard a little bit about this case and it’s human nature to have feelings about the parties already.  On a scale of 1 to 10, with 10 being positive and 1 being negative, how would you rank your feelings about my client at this point in time?  Pick whichever number truly captures what you feel at the moment.  There are no wrong answers.  How many of you chose a number between 1 and 4?  Between 5 and 6?


Final Thoughts 

At the end of the day, jurors must believe your version of the facts.  My preference is to focus the bulk of voir dire on discovering juror attitudes and beliefs that will impact juror expectations of my client and shape a juror’s willingness or resistance to embrace our story.  I’d rather have a potential damages juror who exhibits attitudes consistent with my client’s story than a possible low-damages juror who seems resistant to our themes. Wouldn’t you?



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2 Responses

  1. Eugene Boule

    Interesting article. What if you try damages only cases where liability has already been decided in plaintiff’s favor? How do you protect against the jury’s desire to simply give plaintiff what she asks for?

  2. In my experience, even when liability has already been established or has been stipulated, the defendant still needs to address the issue of damages. In many ways, the issue of damages becomes an easier topic to discuss, if you will, simply because awarding dollars is the jury’s only role. The topic is no longer quite as taboo because it is the sole function of the jury.

    I actually think a defense attorney in this situation would want to conduct a very similar voir dire to the one he would conduct if liability issues were still at issue.

    Juror decision-making is influenced largely by emotion, the ability to identify with your client/story on a personal “oh-I-know-what-that’s-like” level, and pure old-fashioned commonsense. Even though liability may not an issue for jurors to decide on the verdict form, they will still think about it and consider it as they hear evidence about damages. To the extent possible, the panel still needs to hear the story, it still needs to hear that your client did not exhibit ridiculously poor conduct, and it still needs to know that the damages being sought by Plaintiff are unreasonably high.

    In order to weed out the “give them what they want” jurors, you’ll need to identify jurors who find the liability issue so damning that the dollar issue is unimportant. You’ll want to identify jurors with an anti-corporate mentality or who have a lifestyle, job or personal experiences that might cause them to identify with the Plaintiff, rather than your client. If you’re a corporate defendant, you’ll want to identify jurors who assume that just because you have money, you should pay the Plaintiff what he wants and call it a day. You’ll want to very subtly try to identify jurors who demonstrate characteristics consistent with fiscal conservatism, as they may be more frugal than a more charitable juror. You’ll also want to subtly identify jurors who are open to the idea that some people just want to win the litigation lottery rather than recover what would be reasonable compensation. (Emphasis on subtle!! You don’t want to hand Plaintiff any strikes or jurors for cause.)

    Because jurors strive to be fair, empowering them to be smart stewards of dollars is another good strategy. If the dollars they were awarding were coming directly out of their pocketbook, wouldn’t they want that award to be reasonable? The Defendant has accepted liability, but defense counsel still has a duty to present jurors with the proper tools they need to make the right decision on damages. By appealing to the jury’s desire to feel accepted, to be respected and to do the right thing, you can begin to empower them to hear the whole story and to consider all evidence.

    Damages voir dire is not strictly about weeding out the scary juror; it is also about empowering the entire panel to do the right thing and to be reasonable.

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