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Commentary: Explain to the jury why your figure is the magic number

One of the better blogs I’ve read that relates to trial issues is The Persuasive Litigator (persuasivelitigator.com). Its author, Dr. Ken Broda-Bahm, recently wrote about jurors and their calculations regarding civil damages. He noted that a recent study demonstrated that jurors generally move from a story to a general sense of damages, then to a specific number.

It has already been rather well-established that offering a number as a psychological anchor plays an important role in jurors’ arriving at a verdict in civil damages. The question of whether you should suggest an amount or leave it to the jury has been determined: You should ask for a figure. However, it also appears that in addition to the anchor, you need to provide meaningful justification for it by providing reasons in context.

In a recent study, a research team led by two psychologists from Cornell University concluded that jurors most often are at a loss to know what number is appropriate. But the researchers noted a relationship between how bad the injuries are and the amount awarded. Unsurprisingly, the more serious the harm, the larger the amount.

However, we know from research that suggesting a verdict amount or number acts as a “primer” that influences the final conclusion. If our damage range is high, the discussions are generally higher than a lower suggested number. The number acts as that anchor for the discussion of the appropriate amount.

What the study demonstrates is that when the dollar amount isn’t simply offered as an arbitrary selection but is supported by meaningful references, it results in a larger amount. Not only were the ultimate awards in the study closer to the anchor, but they were more predictable when there were meaningful reasons given to support them.

The definition of “meaningful,” of course, will vary from case to case. The important point is that we must do more than just throw out a number. We need to offer reasons why the numbers we suggest are appropriate, reasonable and fair.

Take, for example, the well-known research study involving people lined up at a copy machine, in which the research team would go to the front of the line asking to use the copy machine first. In the cases in which they gave no reason, the request was granted about 60 percent of the time. In the cases in which they gave a reason, such as an important meeting, it was granted about 90 percent of the time.

In fact, the study showed that the reason wasn’t even important; it was simply the fact that a reason was provided. I have referred to this psychological principle as the “magic of the word ‘because.’”

Jurors are generally without any experience or education about correlating dollars to harm. They are searching for someone they can trust and reasons they believe justify their verdict, because they want to do the right thing. That’s why some have argued that it is a mistake to ask for the bills or economic loss when they are relatively small compared to the verdict being sought.

Jurors look for things they can rely on as measuring sticks, and the out-of-pocket loss represents something they can understand and are likely to use to gauge the general non-economic damages. For example, in a wrongful death case, the out-of-pocket loss could be relatively small, and it might be better to waive those costs for fear it would hold down the general verdict.

The lesson here is to offer rational reasons for the amounts for which we argue. I recommend dividing the damage request into two time periods: past and future. I advise that these time periods be further divided into economic damages and non-economic damages. By breaking up the numbers, they’re more digestible than one lump amount. I recommend that the non-economic elements be argued from the standpoint of the impact each makes. Physical pain, for example, is not the same as mental pain. Disability has consequences that are different than the loss of enjoyment of life, etc.

Asking a jury for a figure is the right approach, but it’s an incomplete strategy. Without explanation, it’s a request without a reason.

Paul N. Luvera is the founder of Luvera Law Firm in Seattle. The author of five books and numerous articles, he was elected to the American Trial Lawyers Association Hall of Fame in 2010. A version of this column originally appeared in Rhode Island Lawyers Weekly, sister publication to The Daily Record.