How do you help jurors understand the difference between economic and non-economic damages?
On one hand, jurors want a formula, but on the other hand, formulas often backfire. For example, it’s not unusual to watch a mock jury deliberate and hear someone say, “Well, they’re asking for $10,000,000. This guy will live 23 more years according to their experts. So let’s see. Ten million divided by 23 is about $435,000. Divide that by 12 and that's…holy hell that’s over $36,000 a month!”
This is dangerous.
So how do we navigate this in trial? I firmly believe that you need to tell jurors how to calculate damages. So many attorneys throw up their hands and say, “No one can tell you how to do this, you just have to rely on your judgment.” Uh, big mistake. As David Ball says, if you tell the jury that no one can tell them how to calculate damages, they hear: “it can’t be done.”
Here’s how I often suggest handling it...
In voir dire, ask jurors about the difference between the price of something versus the value*. For example:
"Can something have value even if you paid very little for it?"
"What should happen if someone destroys something “priceless?”
"How do we, as a society, make it up to that person?"
"Why are some things valued very high in our society, say, a Picasso or a basketball player, and other things aren’t?"
In opening, tie economic damages to price, and non-economic damages to value. You know jurors will want to use a calculator so tell them when that is appropriate. Say:
“Economic damages is where you can get your calculator out. This is where you look at ‘price.’ How much will it cost to get the plaintiff back on his feet? What accommodations will he need? How much will medical care cost? This is the easier part of your job. You just look at the receipts, the bills, the reports and add it all up."
You can then continue:
"The hard part of your job, however, is non-economic damages. This is where you determine value. You won’t be able to use a calculator here. There is no formula. This is where you have to decide how much value to place on something like no longer being able to walk your daughters down the aisle. Or no longer being able to do simple things like change a lightbulb without asking your neighbor for help.”
But don't stop there. In closing say:
“Now here’s how we came up with the non-economic number.” Walk the jurors through your process. Tell the jury how you came up with the number but continue to tie it to value and not price.
The minute you start talking about how much things cost, you're in the “price” zone. You've got to get jurors into the “value” zone when discussing non-economic damages.
There’s no perfect way to help the jury with non-economic damages, but I do think jurors need more help than we often give. So help the jury by first, explaining the difference between the two types of damages, and then, helping them understand your reasoning for the non-economic number.
*Thank you to John Coletti who, along with Paul Luvera, developed this method and allowed me to share it.
We are all about beginnings and endings.
It's exciting to start a new project or finally reach a long-term goal.
But whether it's weight loss, saving a certain amount of money or becoming a better trial attorney, the magic is in the middle.
The middle, however, isn't as exciting as the beginning or end. It's not fun to try things and fail. It's not super sexy to not be great at something the first time you try it.
But the middle is where you change and grow, and if you don't stop to enjoy the process of reaching your goal, you'll miss the best part.
For example, I'm on a journey to lose weight. Sure, it will be nice to reach my goal weight eventually, but I'm loving the journey.
I know it's hard to believe, but I am actually enjoying the entire process of losing weight.
I'm learning how to love myself at any size. I'm learning how to show up for myself when I'd rather quit. I'm learning to keep commitments to myself. In other words, I'm becoming the person I want to be NOW instead of waiting until I hit my goal.
How many of you embrace the journey to becoming the best trial attorney you can be? Although it can be hard at times, I'm telling you, what you're learning NOW is where it's all at.
We all want to believe there's a pot of gold waiting for us at the end of the rainbow. We tell ourselves that once we meet our goal THEN we'll finally be happy. The problem is, it doesn't work that way.
Results don't bring happiness. Effort does. Doing the work to lose weight, save money, become a trial attorney is where the happiness is but most of us miss it because we're so focused on the end result.
The journey is way more fun than the destination, but only if you embrace the magic in the middle.
Only seven, you ask?
I know you aren't trying to annoy jurors, (at least I hope not) but there are certain things that you may be doing that are out of your awareness. Let's look at what they are.
#1: Using the hobby question. You want to "warm jurors up." I get it. But asking about hobbies makes light of the situation. No juror wakes up to a jury summons in the mail and thinks, "Ooh goodie! I can't wait to go have a relationship with Mr. or Ms. Attorney!" Avoid this question, at least at the beginning. Jurors are hungry for information, so give it to them.
#2: Telling jurors how important they are. Look, jurors are important, but they sure don't feel important. They've been forced to come to court, shoved in a room and told to wait, corralled into the courtroom and told where to sit, and branded with a plastic sticker that reads: JUROR, telling other people to avoid them! Is it any wonder they roll their eyes when you stand up in front of them and tell them how important they are? Instead, show them. Listen to them. Which brings us to #3...
#3: Not listening. You tell jurors how important they are and that you want to hear from them, then as they speak you dart your eyes around the box, look at your watch or cut them off. Huh? Stop it. Listen to jurors. Intently and with focus. This is what shows them how important they are.
#4: Gimmicks. It's so tempting to try a gimmick you picked up at a seminar, but I implore you to reconsider. Jurors are on high alert for manipulation of any kind. Drop the gimmicks and back away slowly. You don't need them! You just need to show up authentically and let the jury see who you really are. That's it.
#5: Rewording what jurors say. In an attempt to practice "reflective listening" many of you, instead of repeating back what jurors say, reword what they said. This feels manipulative to jurors. If you want to clarify an answer, ask questions instead of rewording.
#6: Making jurors feel stupid. You inadvertently make jurors feel stupid in two ways: 1) you use terms the juror doesn't understand and 2) you ask "should" questions. Should questions are questions like, "What should the doctor have done?" If a juror doesn't know, uh oh. Instead use, "What were your expectations of the doctor?" And of course, always clarify terms before throwing them around so jurors can easily follow the discussion.
#7: Dumb explanations of bias or the jury selection process. Please avoid talking to jurors like they're in 3rd grade and don't understand bias. Instead, tell them about the principles in the case and discuss those principles. That's where you'll find bias, not by lecturing about it ahead of time.
You don't need to do any of the things above to win the hearts and minds of jurors. You just need you. Really.
Give this podcast a listen to learn more.
Several years ago, Bill Barton agreed to speak at our Power of Presence event. During his talk, he said that he had “learned not to take the losses personally.”
A few weeks later, David Sugerman, an attorney based here in Portland, and I had lunch. David just won a 420-million-dollar verdict against BP. He had attended the Power of Presence seminar where Bill had spoken.
As we discussed his recent win and Bill’s remarks on losing, David said, “I too, have learned how to not take the losses personally. But what I think is even more important is to not take the wins personally either.”
Bill, David and other great attorneys know that there’s little rhyme or reason to why you win or lose at trial. They know that there will be times they’ll lose cases they should have won, and win cases they should have lost. Therefore, they don’t take any of it personally. They just do their best and let the chips fall where they may.
Praising yourself for your brilliant lawyering when you win and beating yourself up when you lose makes absolutely no sense. You cannot base how “good” you are on your win/loss record.
Redefine what success means. Are you there to win or to fight? If you’re there to win, well good luck with that. You cannot control whether that happens or not. But if you’re there to fight? THAT you can always be successful at.
We’re in this to win.
The problem is, you can’t control whether you win or not.
And although I think you know this, I don’t think you accept it.
I see so many attorneys desperately attached to winning at trial that when they lose...it knocks them off their game.
When I was wrestling with an issue in my life years ago, my coach told me something I’ll never forget. She said, “The goal is to be 100% committed and 100% unattached.” It’s ok to want to win. But you need to detach from whether it happens or not.
Let go of the idea that winning is the only acceptable outcome. Instead, focus your energy on doing the best job possible and you might just find that winning takes care of itself.
Verbal information is the most difficult information to get across. Because verbal information is difficult to process, audiences tend to tune out things they don’t understand or have trouble following.
The answer, then, is to create hundreds of PowerPoint slides, right?
No. No no no.
Last year I had an attorney come through my opening statement class. A few weeks before the start of the class, he sent me a 150-slide slide deck.
That’s when I knew we were in trouble.
After he presented his opening to the jury, one juror said, “I thought you were very credible.” The attorney responded, “Thank you!” But the juror continued, “until you started with all the PowerPoints. That’s when you lost all credibility with me.”
When you use hundreds of PowerPoints, what message do you send jurors? This case is really complex. It’s so complex, in fact, it’s going to take HUNDREDS of PowerPoints for me to explain it to you. This is not the message you want to send to jurors.
SO complex = TOO complex = Defense Verdict.
In addition, using tons of PowerPoints interferes with your ability to connect with jurors. Jurors can only look at one thing at a time; you or something else. If you’re constantly using PowerPoints, that means jurors must look at the PowerPoints, not you. You’re missing out on real connection with jurors when you use an insane number of PowerPoints.
I'm not saying never use PowerPoints. What I am saying is every single visual you use should support your presentation, not detract from it. You may think that PowerPoints reduce information overload, but they often do the opposite.
YOU are the main attraction in opening. Focus on telling a good story with excellent nonverbal communication. Use visual information to deepen a juror’s understanding, not as a substitute for teaching from you.
Rachel, my colleague here at FORTE sent this article to me yesterday, titled, The Green Smoothie Problem: Why Others Don’t Buy Your Ideas. In it the author discusses a common problem using an analogy of offering someone a green smoothie:
“Imagine I just handed you a smoothie in a glass. ‘It’s a green smoothie. Wanna drink it?’
If you’ve never seen or heard of a smoothie like that, you’d react in one of two ways:
Simply by handing you the smoothie, I’ve immediately put you at an information disadvantage. As a result, you anchor to a past precedent or try to draw confidence from others in order to fill in the gaps in your knowledge as quickly as possible. If my goal is to get you to drink the smoothie, I’ve done a rather poor job. I’ve merely handed you the drink and left you to do all the reasoning to influence your decision.
But if I really wanted to influence your decision, what if I shared the reasoning too?
What if, rather than simply hand you the smoothie, I laid out the details of how I came up with it?”
I was immediately struck by how the Green Smoothie Problem applies to voir dire. So often attorneys will begin voir dire by asking questions and offer no context or reasoning for why they are asking. Jurors, who are already at a disadvantage by having the least amount of information in the room, are immediately put on the defensive; if they don’t understand why you’re asking the question, they are afraid that whatever answer they give may be the “wrong” one.
Giving context helps put jurors at ease and helps you get more information. Which is why I suggest always giving a “context statement” before asking a question, or set of questions, in voir dire.
For example, if your case involves a car crash, before asking jurors, “Who here has ever been in a car crash?” Simply state, “This case involves a car crash.” If the case involves a hospital, before asking people about their experiences with hospitals, say, “This case involves a hospital.”
Other context statement examples include:
“In this case, someone was injured in a car crash.”
“In this case, there is a disagreement about what caused the crash.”
“This case involves an insurance claim that was not paid.”
Attorneys who hear this advice for the first time will often say to me, “But the judge reads a statement of the case before voir dire begins! Why repeat that info?”
The answer is twofold. One, the statement by the judge is read in its entirety, where voir dire will examine various aspects of a juror’s belief piece by piece. Two, the person who has the most information is the most powerful person in the room. Why leave that power sitting in the judge’s lap? Giving jurors context as you work your way through voir dire increases your credibility while empowering the jury at the same time. It’s win/win.
To learn more about my trial method, visit my Trial Tips page to watch videos on various trial topics, or subscribe to my newsletter to receive these blogs and videos directly into your inbox.
Sari has been dubbed the "Attorney Whisperer" because of her unique ability to help attorneys communicate their real selves.