There are jurisdictions where a plaintiff is not entitled to tell the jury the amount they will ask for as a verdict. But, in those states where it is allowed, should you disclose the amount in voir dire? Or wait until opening statement? Or wait for summation or perhaps not suggest a figure and allow them to decide?

I’ve written about this before. See:

Some experienced plaintiff lawyers believe that it is too early to disclose the amount in voir dire because the jury has heard no evidence to support the amount. Others believe that it is better to tell them in order to explore the reaction and discuss it during voir dire. The advantage of disclosure in voir dire is that it allows discussion of the reaction to the amount. In addition, the psychological principle of “priming” is triggered by the disclosure early in the case. Priming in this context, refers to using a number to influence the subconscious mind’s conclusion about numerical conclusions. For example, generally speaking, the larger the suggested number as reasonable, the higher the number arrived at by the other person. Disclosing the number early results in the jurors listening and evaluating with that number in mind.

Disclosure in opening statement of the number you are asking for has a the advantage of the juror’s hearing the evidence outlined that will support the figure. It also has the benefit of priming as well.

Disclosure at the end of the case allows the number to be supported by a full outline of the evidence to justify it as well as arguments in support of the figure.

What is clear is that a figure you recommend as a verdict should always be given to the jury without exception. You should not “leave it up to the jury.” That’s because of the 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.

It is also supported by 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.

In the article from the Sturm College of Law, the researchers studied this concept of anchoring. The issue they studied was the effect of the amount of money the plaintiff asked for on the ultimate verdict. In addition they studied the impact of a defendant who either ignored the number plaintiff suggested or suggested an alternative number.

This important article answers the question of  whether  a plaintiff is better off  not  suggesting any number or should avoid asking for “too much” because it will anger the jury.  In summary, the study found that anchoring effects  were extremely powerful. The plaintiff was able to dramatically increase the potential recovery by simply demanding more money. In the study, damages increased an average of 430% by this tactic and also found it had a small affect on winning. Their conclusion was that the plaintiff should always  asking for a damage figure and should request extremely high damages  unless the concern is maximizing the chance of recovery.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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