The Rationale of Requesting Damages
There are as many theories regarding requesting damages from juries as there are attorneys who make these requests. At Magnus Research Consultants, we have had the opportunity to work with countless attorneys, and consequently, to assess the impact of: (1) plaintiffs’ counsel requesting a large amount of damages to determine whether there is a “ceiling effect” on an amount a jury would be unwilling to award; (2) plaintiffs’ counsel not providing exact amounts of intangible damages to find out what the jurors believe is fair, when left to their own devices; (3) defense counsel, due to a belief the case should be decided in the defendant’s favor, not providing damages in a lower amount than those requested by plaintiff’s counsel as a way to invalidate the plaintiff’s liability case; and (4) defense counsel’s provision of lower damages amounts, in each category requested by the plaintiff, to provide the jury with alternatives to the plaintiff’s large damages request. Although there are other variations in requesting damages, the 4 strategies mentioned above are the most common, at least based on our decades of experience.
The overall conclusion Magnus has reached regarding damages requests is that the jurors should not be left on their own; damages are far too important to allow the jurors to award any amount they believe is “fair and just” without the appropriate amount of guidance concerning each and every category of damages. This means that, for plaintiffs’ attorneys, an amount of damages that can be validated via a life care plan or other means, should be used as a benchmark to anchor other categories of damages, particularly the intangible losses experienced by the plaintiff. There are vast differences among individuals in the amount of money they believe will be sufficient to compensate the plaintiff and plaintiffs’ counsel who leave the decision entirely in the jury’s hands are leaving too much room for the jury to award an amount considerably lower than the amount they are hoping to obtain on behalf of their client. Defense attorneys, on the other hand, must provide the jury with “reasonable” alternatives to the plaintiff’s damages requests. Failing to do so often results in the jurors, when faced with only the plaintiff’s large numbers, believing the defendant has conceded to these amounts in the event the liability portion of the case is decided in the plaintiff’s favor. It appears that there is little truth to the oft cited notion that providing the jury with lower damages amounts serves to validate the plaintiff’s argument that he/she/it is deserving of an award.
In general, because all civil cases are ultimately as much about damages as they are about which side prevails, considerable thought should be given to damages requests in every category, by both plaintiffs’ and defense counsel. Do not expect a jury who has little knowledge of the case facts and no vested interest in its outcome to do your work for you. Instead, develop strong theories of damages, substantiated by the evidence, then explain your theories to the jury in a way they will comprehend.
Contact Magnus for a scientific evaluation of the damages in your next case.