Show Me the Money! Suggestions for plaintiff voir dire on damages.
Plaintiffs hope to receive lots. Defendants hope to pay none. No matter which side of the aisle you’re on, addressing damages with jurors during voir dire can be a daunting task. More than likely, selected jurors will be neither “let-me-write-you-a-blank-check” nor “I-won’t-give-you-a-penny” jurors. The panel will fall somewhere in the middle.
Here’s what I’ve found to be true more often than not:
Most jurors are quite uncomfortable with the arbitrary idea of awarding millions of dollars to an unknown person (or company) for an unknown reason based on unknown facts. Asking jurors during jury selection to commit to awarding millions to the alleged victim is like asking them to loan a large amount of their personal money to a complete stranger. Jurors want to be good stewards of money. They want to do the right thing. Most are open to awarding damages if they believe compensation is just, but they don’t want to write a blank check or add extra zeros to a damage number unless they have feelings that compel them to do so.
And what compels a juror to have these feelings? (1) The juror perceives the presented evidence as an injustice and as violating her view of how the world should work. (2) The juror has formed some sort of emotional response to the plaintiff’s story. (3) The juror believes the damage amounts being requested are commensurate with the perceived bad acts.
Does this question sound familiar?
“This is a very important case because it involves [insert wrongdoing here]. We are seeking X-Million-Dollars as compensation to my client. Is there anyone on the panel who simply could not award this kind of money if the evidence supported it?”
Is the question designed to identify dangerous jurors for the plaintiff? Sure. Is it as effective as it could be? Not really.
Here are a few things for plaintiff attorneys to consider when addressing damages with the jury panel.
- Phrase your question in a manner that welcomes diverse feedback and creates a sense of safety.
Attorneys are often so focused on the impact of the answer that they forget about the impact of the actual question. As addressed in a previous blog post, jurors are more likely to speak openly, candidly and honestly if they feel safe enough to “tell it like it is.” If jurors feel boxed in or forced to answer a yes/no query, they may feel frustrated that their true feelings are not welcome or that they are being shut down. And a frustrated juror is typically a very quiet juror.
By phrasing your questions in a more open-ended manner, you will likely elicit responses with greater depth and meaning. Does it take more time? Yes. But the added benefit is worth it. For example:
“This case is a civil case, and in civil cases the only remedy the law provides is monetary compensation. In a criminal case, the law provides the remedy of jail, but in a civil case, there is no jail… only money. Mrs. Smith, how do you feel about the idea that civil lawsuits allow for the recovery of money damages? Mr. Jones, how do you feel about what Mrs. Smith just said?”
“We are here because of the reckless conduct of the Defendant. My client would like nothing more than to turn back the clock and change the past, but unfortunately that is simply not possible. We cannot undo those bad acts or change the course of events, but what we can do is seek money damages for those bad acts. But we have to prove our case to you. If we fail to prove that the conduct of the Defendant caused [insert damage], we don’t believe we are entitled to a dime. However, if we do prove that the Defendant’s negligent conduct caused [insert damage], then we believe we are entitled to appropriate compensation. Mr. Anderson, how do you feel about that? Mrs. Hill?”
- Use your Q&A to help foster an emotional connection between the jurors and your key themes.
Although any plaintiff attorney will undoubtedly want to identify jurors who cannot award damages, if the Q&A addresses only dollars, a great opportunity is lost. If jurors can identify on a personal level with your client’s situation, they may be more open to discussing how they feel about the damage elements. And the added bonus? You’ve begun to create an emotional connection between the juror and your client.
For example, in a case involving the death of a spouse, the following questions might be appropriate before asking jurors how they feel about awarding “soft” damages:
“Mrs. Smith, I see you’ve been married for 25 years! What characteristics or qualities does your spouse possess that you still find special after all these years?”
“Mr. Jones, what kind of activities do you enjoy doing with your wife?”
“Mrs. Gomez, I see that you and your husband own a small business together. How did y’all come to the decision to open the business?”
- Acknowledge the stress and potential internal conflict that awarding damages can cause.
Most jurors are inherently nervous about being tasked with awarding damages, especially in personal injury or medical malpractice cases. The simple act of acknowledging the difficulty and nervousness that most jurors will feel about awarding damages helps create an environment of acceptance… and every juror on the panel wants to feel accepted.
One effective way to measure jurors’ level of comfort or discomfort with damages is to ask jurors to rank their attitudes towards the various damage elements. For example:
“I’d like to talk about compensation for [insert damage element] for a minute. (Educate jurors briefly and in a non-legal way what this element means.) If you were asked to choose a number between 1 and 10 to describe your degree of comfort in awarding this type of damage, what number would you choose for yourself? Let’s say 10 equals extremely comfortable, 1 equals extremely uncomfortable, and 5 is smack dab neither comfortable nor uncomfortable. How many of you would consider yourself to be in the 1-3 category? And how many of you believe you fall in the 4-6 category?”
Note that I did not include a query about the 7-10 category. Why? Because identifying these jurors could identify potential strikes for the Defendant.
At the end of the day, talking about damages is a must for almost any plaintiff voir dire. It’s challenging to talk dollars with a group of complete strangers in the sterile courtroom environment. But there are ways to address the topic effectively, neutralize juror fears and build rapport with the panel. And of course, to identify those jurors who simply won’t “show you the money!”
Our next blog post will address this same topic from the perspective of a defense attorney. Tune in next week!