Legal View: The challenge of asking for damages

By Sylvia Hsieh The Daily Record Newswire When Carl Bettinger stepped up to the jury box in the summer of 2007 to make closing arguments in a nursing home abuse case, he reminded the jury that his client was not just an old and sick woman, as the defense claimed. She had been a child, had played in a sandbox, had been a mother and grandmother, had loved and lived. The jury responded to his imagery, coming back with one of the largest verdicts in the country that year -- $54 million. Whether you're a plaintiffs' lawyer asking the jury for millions of dollars or a defense lawyer seeking zero damages, broaching the topic of money is always a tricky thing. Too high a number and you risk offending the jury; too low and you've sold your case short. And if you don't provide any guidance, the jurors' figure may be many zeros away from what you had in mind. Theories about how to best discuss damages, especially abstract damages such as pain and suffering, abound. Trial lawyers disagree on many points. But there are also common themes in the way different lawyers, even on different sides, talk about damages to a jury. One concept both plaintiffs' and defense lawyers ascribe to is "anchoring." It's a way of getting the jury warmed up to the number you're eventually going to suggest: start talking in low numbers and the jury will start thinking in low numbers; talk in big numbers and they get comfortable thinking about, talking about and deliberating over big numbers. The numbers don't even need to be dollar figures, said Mark Kosieradzki, a plaintiffs' attorney at Kosieradzki Smith in Minneapolis who has run many focus groups proving the theory. "But the large numbers have to be linked to something in the case," he added. Kosieradzki has anchored juries to large numbers in trucking cases, for example, by talking about the 2 million miles driven by a trucker or the 20 million drivers a company exposed to a danger. James Girards, a plaintiffs' attorney, avoids putting small damages into evidence to stop the jury from thinking in small numbers. "Never ask for funeral and burial expenses and those types of things," said Girards, of the three-lawyer Girards Law Firm in Dallas. If a jury gets anchored to the plaintiff's large number, this can put defendants in a "damned if you do, damned if you don't" situation, said Laura Dominic, a senior trial consultant with Tsongas Litigation Consulting in Portland, who assists defendants at trial. "If you [as a defendant] don't give the jury an alternative damage theory, you [have to be] concerned the jury will anchor to the plaintiff's number. If you do give an alternative anchor, are you risking admitting liability?" she asked. That's why Jeannine Lee, a defense attorney with Leonard Street & Dienard in Minneapolis, who frequently defends cases involving catastrophic injury or death, said it's the extremely rare case when she will talk about damages to a jury. Instead, she focuses all her efforts on liability. "I don't really want to be in the position of making light of an obviously very serious injury. With a burn injury, that's not something someone is making up. It's usually far worse than a plaintiff's lawyer can even paint it. I really don't want to touch that with a jury," she said. In cases where damages are disputed, Dominic recommends defense attorneys anchor the jury to a small number, but not so low that it's offensive. "If the plaintiff is asking for $10 million and you [suggest] $200,000, that's almost laughable," she said. She also recommends tying the figure to something in the real world, such as offering the plaintiff counseling at $100 per hour for three years for emotional pain and suffering. For some plaintiffs' lawyers, there's no such thing as anchoring too early. "Every case is won in voir dire," said Rafe Foreman, a plaintiffs' attorney with Foreman, Lewis & Hutchison in Grapevine, Texas. In jurisdictions that allow it, many plaintiffs' lawyers will ask a pool of potential jurors if anyone has a problem with a request for millions of dollars. "It's an important way to weed out the tort reform jurors," said Steven Levin, founder and senior partner at Levin & Perconti in Chicago. "You have to start having the jury believe this is not a frivolous lawsuit from the outset," said Kosieradzki. Foreman puts a number on his case in voir dire and again in opening statements. In fact, he asks the jury pool for permission to tell them the number, asking if they want to hear it now or at the end of the case, explaining that he's hesitant to tell them now because it might shock them. In his experience, they always want the number sooner rather than later. But some plaintiffs' lawyers don't follow the early approach. Bettinger does not believe in talking about money too soon, before he's established credibility with leery jurors. "All it does is light up all those receptors and just confirms what the jurors were already thinking -- that the plaintiff's lawyer is there to trick them and persuade them to give them a big verdict for a frivolous case," said Bettinger, a partner with Shapiro Betting Chase in Albuquerque, N.M. In the nursing home case, he did not give the jury a dollar figure until his closing argument. Even then, he offered a range, rather than a single figure. "It's crazy to ever say to a jury, 'We're just going to leave this up to you.' Giving a range provides some guidance while at the same time acknowledging their power," he said. In general, say plaintiffs' lawyers, today's juries do not respond to formulas, such as per diem requests or comparing a life to a Renoir painting. Instead, some lawyers tell juries they are asking for a "fair trade value" for their client's injury. "Especially in today's political and economic environment with free market type thinkers, they can really attach to the concept of what is a fair trade," said Girards. Foreman tells juries it's about value, not money. "I don't use words like give, gift, award, because it was my client's health that belonged to him. Money is a symbol. I want my client's health back, but since he can't have it, [a jury] can give a symbol for the value. ... I'm not asking for money, I'm asking for the value of what the defendant took away," said Foreman. Published: Mon, Jul 11, 2011