Confronting Pain and Suffering Arguments
Last week, continuing through Robert Tyson’s Nuclear Verdicts: Defending Justice For All, the discussion focused on the defense giving a? damages number to the jury.? It is important to start this week’s discussion noting that while Tyson offers strategies to defeat plaintiff’s pain and suffering, he also recognizes that “Injured people should be compensated. They should receive fair and reasonable compensation from the party who caused them harm.”1? In the adversarial legal system, who defines “reasonable?” And more importantly, what standard do the jurors use to define an amount as “fair and just in the light of the evidence.” ?Pain and suffering can include physical and emotional distress, lost enjoyment of life, and the impact the injury has had on the plaintiff's relationships and daily activities?
The judge instructs most juries that “There is no exact standard for measuring such damage” so without clearer guidance, jurors are left to rely upon their own experiences to calculate how much those slippery numbers translate to dollars.? In most trials, defense counsel intently focuses on chipping away at the plaintiff’s economic damages, while becoming less focused on the squishy non-economic damages, like pain and suffering. That has proven to be a very costly approach. In a recent study of over 1,300 high verdict cases, “noneconomic damages are typically the largest component of a nuclear verdict—in fact, in six out of 10 years in the study period, the total amount of noneconomic damages in nuclear verdicts exceeded total economic and punitive damages combined.”2 ??
?With the recent spate of high-dollar verdicts, it would seem to many defense counsel that plaintiffs have been compensated well above what would be considered “fair and reasonable.”? Defense counsel has concerns about more than just the? damage amounts that have outpaced inflation. Counsel is all too aware that “because of their massive size and unpredictability, nuclear verdicts can threaten the existence of a defendant business, raise costs for consumers, and prolong litigation by virtually guaranteeing an extensive cycle of appeals.”3
Incalculable non-economic damages are difficult for jurors to pin down and place a number on, often because defense lawyers do not know how to effectively educate the jury on what a reasonable defense number should be. Thus, this becomes an Achilles’ Heel for the defense because of the difficulty of anchoring a subjective experience to an objective number.4 People don’t like talking about money, and defense attorneys shy away from these uncomfortable topics, to their detriment.? When jurors are given a startlingly large number by the plaintiff, they are often unable to recognize the unreasonableness of that number because of their own flawed perception of money. Jurors have an inability to compare the suggested award with a similar example in their own lives because they lack the plaintiff’s unique experience.
?But this also begs the question: How do jurors get comfortable with numbers that rival the amount Elon Musk paid for Twitter or the most recent lottery payout?? Moriarty, in a recent article, argues that social inflation is the culprit,? Large money verdicts have become so ubiquitous? that the average individual’s understanding of the value of money is inaccurate:
In a recent YouGov survey, respondents believed that 10% of households have an annual income of $1 million or more. According to the U.S. Census Bureau, less than 0.5% of households earn that much. The distortion is even greater for households earning $500,000 or more. The survey showed that the public believed these households accounted for 20% of the total, while in reality it is only about 1%.5?
Recent large dollar contracts within the sports, business, and entertainment industries cause the public’s perception of money to be “divorced from reality.”6 The world’s ten highest-paid athletes collectively made $992 million in pre-tax gross earnings in 2022, the third-highest total ever. Los Angeles Lakers’ LeBron James earned $121.2 million, “crushing the $96.5 million record for an NBA player that he set last year.”7 With numbers inundating John and Jane Juror on their daily social feeds is it any wonder that they? award those high dollar verdicts? ?This unrealistic view of money pervades the courtroom as? jurors enter, assuming everyone else must be earning those high salaries.?
With the litany? of obstacles to overcome, how can defense attorneys effectively confront the plaintiff’s non-economic arguments?? First of all, the defense attorney? must actually present an argument for pain and suffering: “Research shows that in the large majority of [runaway jury verdicts], defense counsel didn’t argue non-economic damages.”8?
In order to address the pain and suffering issue effectively, Tyson highlights the two areas for defense counsel to focus on:?
(1). What is the impact of this accident on the plaintiff’s life, and
(2). What is the impact of money on the plaintiff’s life?9
Once the plaintiff attorney has described how the accident has impacted their client, tell the other side of the story. Then unveil what impact money would have on the plaintiff’s life. As Tyson puts it: “How will the money have a real and meaningful impact on the plaintiff’s life?”10 Instead of avoiding this discussion and leaving non-economic awards up to the jury, meet this obstacle head-on. Avoiding it, as the research shows, will likely be your Achilles’ heel. So, instead, give the jury concrete examples of what the plaintiff can do with the? money in real life dollars.?
In a recent mock trial of an automobile accident, the defense attorney gave the jury just that…concrete examples of what the plaintiff was able to do. He did not spend time excoriating the medical experts.? Here, the defense counsel was able to show the jury that the plaintiff could still do the things he loved the most: boating and spending time with family. The defense stoked the jurors’ desire to understand the impact their award would have on the plaintiff’s life.? Attaching concrete figures to each element of pain and suffering is key, according to Tyson. “When evaluating and arguing the impact of money on a plaintiff’s life, defense counsel must relate the value of money to activities or hobbies the plaintiff enjoys…. Any pain and suffering award should try to give the plaintiff back some of the enjoyment in her life she claims she lost.”11 Then “figure out a way to have your money make a meaningful impact on her life.”12
So what did the jurors do in the recent case? Plaintiff asked the jury for $5,000,000, but the jurors awarded an average of $809,821.
Was this a win for the defense? Certainly. Was this a loss for the plaintiff? In the juror’s eyes, arguably not. While the number is significantly less than requested, it is insightful to note that 93% of those jurors believe “$1,000,000.00 is a life-changing amount of money.” (See their answers in the cover image graph).
Confronting the pain and suffering arguments by shining a positive perspective on the plaintiff’s life and by giving clear examples of how the reasonable verdict amount you’ve suggested will allow the plaintiff to continue to be his or her “true self” is one of the steps to helping defense counsel avoid “runaway jury verdicts.”13
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Want more insights from?First Court’s experience with jury verdicts? Check out our blog series on?LinkedIn?where we delve into?Robert Tyson’s ten points one-by-one, drawing from the advice in his?book?while combining the thought leadership of prominent plaintiff and defense attorneys who have experienced both sides of a nuclear verdict. Keep an eye out for our upcoming?blog The Value of a Life: the fourth article?in our series?about addressing #nuclearverdicts.
About the Author:
The author, Kristi Harrington, is a trial consultant with First Court, Inc. As a retired circuit court judge, Kristi presided over hundreds of jury trials. Kristi is a Distinguished Visiting Professor and former Director of Advocacy at Charleston School of Law.
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1 年I love it, thank you! #NuclearVerdicts
Facilitating mock jury trials, analyzing jury responses and the outcomes of trials, and writing reports that synthesize the findings.
1 年Robert Tyson We hope you enjoy this article!
Facilitating mock jury trials, analyzing jury responses and the outcomes of trials, and writing reports that synthesize the findings.
1 年Michael Beene If you have a moment to check out First Court's most recent post, I think you'll find it was worth it! Hope you are well!