The DOs & DON’Ts for Defense Attorneys

Navigating Damages:
The DOs & DON’Ts for a Strong Defense Strategy

By: David Barnard, Ph.D., Senior Litigation Consultant, Magna Legal Services

As a defendant, dealing with damages at trial can be a tricky issue. Below are some quick DOs and DON’Ts to guide you through the process:

DO provide jurors with a low damages anchor.

The defense providing jurors with an alternative damages model serves as a low anchor bringing damages down in the event of a plaintiff verdict.If only the plaintiff offers a damages figure, that number is the focus of their damages discussion. Often with a plaintiff verdict, jurors will still try to be fair to both parties. This results in a willingness to cut down damages. If they only have the plaintiff’s high number, that is their starting point. However, if the defense provides an alternative figure, instead of working down from the plaintiff’s number, jurors often work up from the defendant’s figure resulting in a far lower damages award.

DON’T let the Plaintiff control the discussion of damages.

Plaintiff’s attorneys love talking about damages. It is the culmination of why they are there! Defense attorneys tend to shy away from damages. Some believe, with good reason, that they don’t want to give the impression that damages have any merit. The problem is that if jurors do find liability, they will only have the Plaintiff’s figure to work with. We recommend a proactive approach to damages addressing the issue head on. Jurors can be made to understand that the defense’s figure is not an offer, but a counter to the plaintiff’s argument that needs to be challenged.

DO be reasonable and show your work.

When offering an alternative damages model, counsel needs to provide a figure that jurors find reasonable and justified. If the Plaintiff is asking for $100M and the defense says $10K, unless it is strongly justified, jurors won’t find that to be a credible position. If jurors feel that the alternative damages figure is merely a ploy to get them to go with a low-ball number, there can be a boomerang effect and jurors can get angry. The alternative model needs to be reasonable and supported. It is important to show your work. Jurors need to see the reasoned approach that led to these figures. Show them your calculations— that you relied on an expert, that you thought this through.

DON’T worry (too much) about poisoning the well.

Defense attorneys resistant to offering an alternative damages figure can be concerned that it will convey to jurors that they don’t believe in their own case. Why talk about money if you believe your client should pay zero? However, academic research and Magna’s mock trial data show that the defense offering an alternative damages model does not hinder its position on liability—as long as it is done properly—and does bring down damages. Counsel may offer its model with the premise, “in case you find against my client.” A more effective approach is to convey that defense counsel believes the number is zero, but the damages figures proposed by the plaintiff cannot go unaddressed.  Through expert testimony and in closing, make it clear that the numbers presented by the defense are not what should be awarded, but merely what the plaintiff would have yielded had the calculation been performed the right way.