I’ve been doing litigation work for more than 25 years, almost all of that time on the defense side. When I started, it was dogma that the defense lawyer should not discuss the subject of a plaintiff’s damages claim in the closing argument. The theory was that if the defense lawyer discusses damages, then the jury will automatically conclude that the lawyer really believes damages should be awarded, but just not as much as the plaintiff’s attorney is requesting.
However, we’re all smarter now and there seems to be a much greater willingness to discuss damages throughout the case.
Jeri Kagel, a trial consultant in Atlanta, recently published an excellent piece in the The Jury Expert entitled “Damages: The Defense Attorney’s Dilemma” (http://preview.tinyurl.com/yfxk4pk) in which she articulates the traditional problem and the rationale for defense lawyers to discuss damages. She gives some great tips on how the defense can effectively deal with damage claims and still not give up the rest of the case.
I’m sorry to oversimplify it but I believe a confident, good defense lawyer can address damages without making the jury believe the defendant is guilty. To do so, however, requires the attorney to think it through and determine the best manner in which to work damages into the defense presentation.
The stakes are too high in litigation for defense lawyers to not discuss damages. Over the years, we’ve heard much about the tort crisis. Ordinarily the crisis relates to the amount of the jury awards being unusually large. Statistics seem to bear out that defendants are not losing more cases on liability than they used to. In fact, the numbers seem to suggest a growing number of defense liability verdicts. When a verdict goes a plaintiff’s way, however, the greatest concern is that the jury will award an unreasonably high verdict. Therefore, the tort crisis is mostly about damages. Thus, the reason for defendants’ attorneys to deal with damages shoudl be self-evident.
About a year ago, I tried a significant case on the defense side. Before trial, we thought the chance we would lose was significant, but settling the case was not possible because the plaintiff’s settlement demands stayed outrageously high. The verdict came in against our client on liability issues, but the amount of damages awarded to the plaintiff was less than the offer of settlement we had made and FAR less than the amount demanded by the plaintiff’s attorney to settle. So, who “won”? The insurer paying for the judgment was very happy because its evaluations of the case were right on target and it chose to not settle for an amount greater than its evaluation. However, had we not put up an aggressive attack on the damages claims, who knows how high the verdict would have gone.
The “all or nothing” approach might work, and be justified, in a very few limited instances, but for the most part, defense lawyers must be assertive in arguing against all parts of the plaintiff’s case, not just liability.