Defense attorneys are understandably interested in strategies for minimizing damages awards. Jeri Kagel recently wrote a good article on defense strategies for addressing plaintiffs’ damages claims. Kagel points out that any damages strategy will depend a great deal on the specifics of the case, but also makes several good points about how best to address this sensitive topic. In short, defense attorneys should not shy away from talking to the jury directly and confidently about damages.
Defense attorneys have legitimate concerns about arguing over damages. If done incorrectly, disputing the plaintiff’s dollar requests can make the defense seem insensitive, or may give the jury the mistaken impression that the defense has admitted liability. However, there are ways to argue damages that may not only lessen any damages award, but may also help the defense win on liability.
For most jurors, there is a fuzzy line between liability and damages. Jurors usually don’t compartmentalize the two parts of a case as cleanly as attorneys and judges. While jurors understand that to award damages to the plaintiff, the jury must first find the defendant liable, arguments made about liability will naturally affect the jurors’ views on damages. Similarly, arguments concerning damages can affect jurors’ views on liability. Most importantly, this interplay between liability and damages need not be a disadvantage for the defense.
For example, most jurors come to court with some suspicion of a plaintiff’s claims. Many jurors believe that the amounts awarded by juries tend to be excessive, that there are too many lawsuits filed these days, that people are too eager to sue, and that frivolous lawsuits are an unfair burden to businesses that have done nothing wrong.
To key into these prevalent attitudes, the defense can present its own damages witnesses to counter the claims made by the plaintiff. For example, a Life Care Plan prepared by an injured plaintiff’s damages experts to describe the losses and future needs of the plaintiff can be countered with a less expensive Life Care Plan that still meets all of the plaintiff’s needs. Medical and economic witnesses for the defense can explain why the plaintiff’s figures are overblown or why certain expenses are unnecessary. If done properly, jurors are likely to see these damages arguments as a debate between competing experts over technical issues, rather than as a wealthy defendant trying to avoid making payment to an injured victim.
Jurors also know that the plaintiff has an interest in inflating the damages request. Confirming that suspicion with effective damages witnesses for the defense can challenge the plaintiff’s credibility not only on damages, but also on liability. For jurors, a plaintiff who fudges the numbers on damages may also be willing to exaggerate the strength of their core liability arguments.