Trial Magazine

1 Focus on the defendant’s conduct first.

Defendant conduct, not harms and losses, drives damages. So start your case with and maintain your focus on the defendant’s conduct. You put the brakes on damages when you draw the jurors’ attention to your client before they know everything the defendant has done. Your harms and losses material tells jurors how much the verdict should be, but defendant conduct motivates jurors to provide that amount—including in damages-only cases. For example, it’s the defendant’s cellphone use while driving that makes jurors want to award damages for your client’s broken back.

2 Find the defendant's motive.

What did the defendant try to accomplish by its wrongdoing? Few acts are intrinsically evil or enraging, but when you add a bad motive, then a bad act becomes a “Big Bad Act.” The worse the motive—such as being self-serving at the expense of others’ well-being—the more it drives damages. Carelessness is not a motive; it merely characterizes the behavior. Find the motivation that drove the carelessness—for example, saving time or saving money.

Here’s the drill: Every negligent act can be traced back to a rule violation, and every rule violation is volitional (the defendant chose to commit the bad act for a bad reason). That reason is the motivation—so find it! An elderly, vision-impaired driver who goes through a stop sign may have no bad motivation, but trace it back: Her family let her drive despite her failing faculties, which made their personal discomfort in taking away grandma’s license more important than the safety of others. This raises an unmotivated incident to an intentional bad act—a strong damages driver.

You might need some thought to get the motive into evidence, but you always can. For instance, ask a defendant driver who was speeding whether he or she was in a hurry, chose to think about something other than driving, or just enjoys driving fast. Those are all bad motives. But there is a caveat: Don’t try to prove motivation. Just offer it as a possibility. For example, tell the jurors in a medical negligence case, “We don’t know why the doctor did what she did. To save time? To get to more patients so she could make more money? Or is there something else? We don’t know, and she’s not telling us.”

3 Choose words carefully.

Never say “accident,” “bad judgment,” “mistake,” or anything else that implies the wrongful act was inadvertent. Inadvertence justifiably elicits forgiveness because the brain is wired to hate and fear bad choices, but an “accident” involves no choice. Thus, an accident carries no fault in jurors’ minds.¹ Drive damages by labeling the wrongful act as anything but an inadvertence-implying word. Instead of “accident,” say “crash” or “wreck.” Instead of “bad judgment,” say “dangerous choice.”

4 Tailor rules violations.

Rules violations need to strike the deepest chords within jurors. They will not resonate with jurors who aren’t familiar with a particular activity or profession. For example, when suing a chiropractor, the rules—when possible—must be about medical care providers, not chiropractors. Rather than saying that “a chiropractor is never allowed to needlessly risk the safety of a patient,” say that “a medical provider is never allowed to needlessly risk the safety of a patient.” Otherwise, people who do not go to chiropractors will have no reason to care about your case and may even blame your client for going to a chiropractor in the first place.

This is one of the most important, highly confirmed, and useful decision-making principles of every plaintiff’s case.²

5 Know the law.

The profession owes a major debt to Don Keenan for initiating and leading the charge to get lawyers to know more law—and how to show the judge what the law really is. Most plaintiff lawyers either don’t know or have long forgotten some important, often necessary, laws. For example, by law, one of the two purposes of compensation is deterrence. And in almost every venue, you can argue the law’s purpose—if you have a well-prepared brief to that effect. Deterrence is the primary damages driver, and you don’t need a punitive damages claim to argue it. But you need to know and be able to support the law.

Here’s another law that attorneys almost always miss, and it applies to the defendant’s conduct: “Ordinary care” and “reasonable care” do not mean an average level of care, such as a “C” or “C+” in care. Negligence is the failure to make the safest available choice.³ Learn to frame negligence and use it that way.⁴

In most venues, when Defendant 1’s negligence places your client in danger of becoming the victim of someone else’s later, foreseeable negligence, Defendant 1 is responsible for it. So, when Defendant 1 is well insured and the second actor is not, knowing the law drives damages to the desired source.

Artemis Malekpour and David Ball are jury consultants with Malekpour & Ball Litigation Strategy. They can be reached at artemis@consultmmb.com and ball@nc.rr.com.

Notes

1. Rick Friedman and Patrick Malone’s Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability (2d ed. 2010) will help you show that a defendant’s act was a wrongful choice. 

2. Learn more about how people make decisions in David Eagleman’s Incognito: The Secret Lives of the Brain (2011) and Daniel Kahneman’s Thinking, Fast and Slow (2011). Also see David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution (2009).

3. David Ball, David Ball on Damages 3, at 232–33 (3d ed. 2012); Ball & Keenan, supra note 2, at 62–68.

4. See id.