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.
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