The late sales motivational speaker, Zig Zigler, wrote a book: “Timid Salesman have skinny kids.”  Having the  courage and knowledge about how to close  the sale and ask  for the order is an essential  part of sales. In sales it’s essential that the sales person believes in the product they’re selling and the fairness of the sales price. The skill required to complete the sale involves convincing the customer of the same. Just as in sales there are certain fundamental principles that apply to persuading a jury to agree to the verdict that you want.

Gregory Cusimano has studied and written about juror motivation and trial for many years. In the September 2016 issue of Trial Magazine, published by the American Association for Justice, he wrote a helpful article covering some of these principles. His recommendations and research in psychology of how to asked the jury for the verdict you want include some of the following ideas.

From time to time I still read and hear lawyers advocating not suggesting any specific figure or verdict from the jury. Certainly there are states like Pennsylvania where the plaintiff’s lawyer is not permitted under the rules to suggest a figure but given a choice the research is clear on whether you should ask for a specific verdict or remedy or not  and the answer is you should ask for a specific figure. The jurors are looking for guidance from someone they trust. Furthermore there are some psychological factors which support the wisdom of doing so.

There is a principle of “priming” which includes the fact that our opinions and choices are influenced by suggestions made before expressing our choice or opinion. Suggesting a number to a jury has the greater potential of influencing their decision. In addition, comparisons to the price of objects of value such as museum paintings can influence on the evaluation of the verdict you’re asking because of the same principle.

There are also the studies that have been done in sales where showing the most expensive home first to a prospective buyer and then the less expensive homes was compared to the reverse: showing the least expensive homes first and then the most expensive last. Research demonstrated that showing the most expensive homes first influenced the buyers who were more willingness to pay a higher price for a home.

Suggestions of a dollar amount have an influencing effect. Jury research demonstrates that asking for specific amount of money or specific remedy produces better results than simply leaving it to the jury. While that does not mean that the lawyer can ask for any arbitrary amount he or she wishes because it must be based upon some rational analysis, it does mean that you should always ask for a specific verdict.

As  to using focus studies to establish how much you should ask for, my experience has been that focus group studies are not reliable as to the dollar value of a case. They are accurate, when done correctly however, in determining whether the case is a major damage case or not. Focus group findings as to whether the potential damages are “small, medium, or large” are generally reliable and helpful.

As to the dollar figure you use, Cusimano recommends  a policy of asking for a specific amount of money and not just a round number. That was always my practice. He suggests that specific amounts of money are seen as more reasonable than round numbers. For example, $51,132 is perceived as less than $51,000. In sales research indicates that people are more willing to pay more when the precise number was used.

There is an anchoring effect that I’ve written about on many occasions in connection with trying cases to juries. One of  it’s applications is that when there is a number suggested as a starting point that influences how we adjust up or down the number that we are asked  to decide. For example, if one first gives a range of choices in numbers and asks someone their opinion of  the population of the United States, their response is influenced by the range used. If one uses a range with a low top number  the response will generally be lower than a range with a very high top number.

A considerable amount of discussion among plaintiff trial lawyers has taken place regarding the question of when and how one brings up the subject of money with the jury. While we should always talk about money damages in some fashion during jury selection, the question is should we use a specific amount that we are going to ask for in jury selection? Gerry Spence is approach is to tell the jury how much he’s seeking in the case for the client and discussing that with the jury in jury selection. Others feel  it is too early  in the  case. Early disclosure answers one of the several  questions all jurors have: What  is this case all about? How much is the person suing for? What’s the defense?

Other lawyers are comfortable with only discussing damages in a general fashion. I have not seen specific jury research on this issue, but my own practice, in major damage cases, was to talk to the jurors about damages in a variety of ways.  For example, I might ask the jurors something like: “If at the end of this case you are convinced that a fair and reasonable verdict is many millions of dollars, how would you feel about agreeing to such a verdict?” Or, I might say: “let’s say at the end of this case after hearing all the evidence and listening  to the law from the judge, you are convinced that a fair and reasonable verdict would be a minimum of $20 million. Would you have any hesitancy in agreeing to the verdict?”  I also emphasized the enormous power the jurors had in this regard as well as the importance of doing the right thing for all parties.

In opening statement I always discussed damages by telling the jury that at the end of the case I would be providing them a way to fairly and reasonably evaluate a verdict in dollars. I would tell them that I wanted them to hear the evidence first and that after they heard the law from the judge I would be outlining a way to fairly evaluate what a reasonable verdict would be in the case.

As to summation there are some basic ways to argue damages. These include:

    1.  Per Diem: Assigning a dollar amount to time elements. With this argument one gives a dollar amount to an element of injury and multiples it over time. For example, one might argue the minimum wage per hour for pain and suffering over past and future life expectancy.
    2. Lump sum: Simply suggesting a total amount to be awarded without breaking it down. Here the lawyer either assigns a single total dollar value to the entire case without any specific dollar break down.
    3. Damage ranges: Suggesting a low and high range for the case or for each element of damage. One can also argue a range of verdict from a minimum to a maximum range which is argued is reasonable.
    4. Elements of damages: Assigning dollars amounts to each element of damage allowed in the jury instruction. In this case, the advocate takes each element of damage, such as pain and suffering.
    5. Damages per injury: Assigning damages to each specific injury received. One may chart each injury the client received. For each injury a dollar amount is assigned, past and future. The total of all injuries represents the total verdict.

In my summation I had a PowerPoint or poster divided into past and future damages. I had each category divided into economic and noneconomic damages. I also had the elements of damages outlined from the jury instruction. In almost all cases I would suggest specific numbers for each. Those numbers would be based upon an analysis that I offered to the jury regarding how to evaluate the loss. I always made it clear that economic damages were the easiest category because they dealt with bills past and future at out-of-pocket expenses. Those involved third parties that is medical doctors, healthcare and other providers who whose bills were being paid. I emphasized that the only important issue in the case was non economic damages because that was the test of fairness and justice, not the bills.

I always divided pain and suffering into mental and physical. I usually discounted the physical pain has not being as important as the mental pain. My dollar evaluations would sometimes involve a value per time involved, but most often would involve a discussion about a dollar value for the particular element of damage involved. I discussed how this particular element of damage had already impacted and will in the future impact the client. I usually had a suggestion for a reasonable value which might be based upon the charges made by the defense expert witness, the hospital or treating doctor bills or other examples from life.

These  are some very general ideas on a involved subject that may be of some help.

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  1. That was excellent. Thank you for sharing.

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