THE CHALLENGE OF ALTERNATIVE DAMAGE FIGURES

I didn’t believe it until I saw it myself.

It was the 1990s, and I was learning how to apply my graduate school knowledge to the field of trial consulting. I was doing this the way many do, facilitating focus group after focus group and mock jury after mock jury. This particular case was a product liability case. I was watching a mock jury deliberate, and as sometimes happens, the group was having a freeform discussion. They weren’t following the verdict form in a linear manner; instead they were depending on their feelings. Consequently, they were discussing liability, damages, and allocation of responsibility all at the same time.

And then it happened…

FOREPERSON: Juror number six, what you think?

JUROR #6: I think the product was defectively designed.

FOREPERSON: Why do you think that?

JUROR #6: Because the defense attorney offered $100,000 in the closing.

FOREPERSON: I don’t think they were admitting liability just because they offered an alternative damage figure. The defense attorney specifically said something like, “I don’t think you’re going to get there, but in case you do, $100,000 is a number that has better evidence.”

JUROR #5: (jumping into the conversation) I heard that too. But I think that the fact that they offered an alternative figure is very telling about how they actually feel about their case.

FOREPERSON: Really?

JUROR #4: (Interrupting) if the defense believed they did nothing wrong, then they wouldn’t offer a penny.

JUROR #6: Exactly! You took the words right out of my mouth.

After the deliberations were over, and we were preparing to debrief with the trial team, I asked the senior consultant on the case, “How common is it for an alternative damage argument from the defense to damage their credibility on liability?” Her answer was, “It seems as if there’s at least one juror who doesn’t like the fact that the defendant offered an alternative number. For them, it’s a black-and-white thing. You’re either innocent or guilty.”

Juries typically range between six and twelve people. In that number of people, it’s likely at least one of them will have a very difficult time with an argument for alternative damages. It might bother them enough that they make a big stink about it.

Recently I had to provide advice on this issue to a hard-working trial team. Their question to me was, “If it’s risky to offer an alternative damage figure, when do we use it, and how do we execute it?”

I recommended, “If you think you have decent chance of winning, attack plaintiff’s damages, but make it clear that damages can’t happen because the plaintiff’s attorney didn’t prove the defendant’s product was responsible (note: causation was a defense strength in this case). The preponderance of the evidence says that other factors were the most likely cause. Don’t give an alternate number.”

The reason for the recommendation is that I think the upside of making sure your position is consistent is better than the downside of arguing an alternative damage theory. In some cases, “arguing zero” acts as a lower counter-anchor than the alternative figure if the jury splits the baby. Yes, the angry, plaintiff-oriented jury gives the plaintiff’s attorney everything he asks for, but the jury has to be united. If you have both pro-plaintiff and pro-defense jurors, they either hang, or they horse trade. Plaintiff-oriented jurors may start at plaintiff’s ask number, but defense jurors often start at zero. You make it difficult for the defense-oriented jurors to argue for zero once you’ve put, “the defense figure” out there.

Of course, when you have a strong sense you’re losing, you have to go all in on an alternative damage figure to do whatever you can to limit damages. This is often effectively accomplished by finding padding and flaws in the plaintiff’s numbers to erode their credibility and to motivate the few defense-leaning jurors to negotiate that number down. Defense jurors can often negotiate by taking a position that is akin to, “I’ll give you my vote on liability if we get the damages number way down.”