SHOULD YOU TELL THE JURY IN VOIR DIRE HOW MUCH YOU WANT IN THEIR VERDICT?
There is a difference of opinion about whether plaintiff should tell the jury the verdict amount you are asking for in jury selection. Some believe it is too soon in the case and it will alienate the jurors. Others, that it is important to anchor the number immediately. What follows is a very general discussion about giving the jury the verdict you want in voir dire and/or opening statement
David Ball recommends it be done in his book Damages and suggests how to do it. Roughly illustrated, one tells the jury:
- You all understand that I have an obligation to suggest to you when you’re verdict should be in this case? Does anyone have a problem with the fact that I will be suggesting what you’re verdict should be in this case at the end of the case?
- How many have you heard that lawyers always ask for more than they really want the jury?
- how you feel about a lawyer who honestly expresses their evaluation to you yet final argument as to what you’re verdict should be without adding more than they feel is fair?
- How do you feel about by honestly giving you the figure I think is correct and the reasons why I think it’s correct without any games?
Gerry Spence give the jury a number in every case. He usually starts by telling them his own reluctance to people seeking money and those who ask for it. He then tells them the amount he is asking for and opens discussion. See below as an example:
“You know, deep down inside I’m bothered by the idea of asking money for justice. I was taught it not polite to ask for money and here I am asking you to appraise this case for $X. Is anyone else bothered by this?”
” You’re going to hear us talk about what seems like to me an unbelievable amount of money. In this case I’m going to be asking you to return, after we prove our case to you, the amount of $2 million a year each of those 25 years they were in prison when they were innocent. Would you be willing to give fair consideration to such a demand? How many of you would be willing to consider that?”
Other lawyers have asked the jury:
- “Does anybody have any idea how much it will cost in today’s dollars, to provide quality medical care for a severely brain injured child over the next 50 years?” I will then ask “Would it shock anybody to learn that, in today’s dollars, the cost to take care of a severely brain injured child like Joe will be $20-$25 million?”
- “I’ve heard it over and over again since I filed this lawsuit here, that I was crazy to file a lawsuit in this, the most conservative jurisdiction in the state and that the people in this community will never give the kinds of damages to one of its members that would be awarded in the big city. Which way do you lean?”
- The lawyer tells the jury he read about a verdict and gives a very large number which he says he thought sounded excessive. He then asks what the jury considers an excessive verdict. The principle of priming with the first number results in higher than normal ranges for “excessive” verdict ranges the jury adopt.
My usual approach to this is to give a number in voir dire or opening only in cases of demands of a substantial amount. Here’s one – this a summary using closed ended questions which you should not use
- Aware two kinds of damages involved: Economic or bills and non-economic – money equal to harm done
- If evidence shows bills to date total $_________any reason why you would hesitate to reimburse if you find for Joe?
- If evidence shows the future bills total $________ etc.
- So if the bills, past and future total $_________would you hesitate etc.
- In addition, there is a claim for the harm done which has nothing to do with the bills. This is the amount that fairly and reasonably equal the harm done both up to now and for the rest of Joe’s life. At the end of this case I’m going to explain why a fair and reasonable amount for the harm done is $__________
From here the approach is discussion. One way is the closed ended: “How many of you would be unable to wait to hear all of the evidence before deciding if that is a fair and reasonable amount? I don’t like that approach. Instead, after injecting the economic numbers I like to use a general approach. Here’s what I cover:
(1) Always awkward talking about money. Some discussion about money.
(2) My duty to appraise the value of the harm done and recommend fair and reasonable amount.
(3) My appraisal after living with this case for ___ years is that a fair and reasonable sum for harm done, not the bills, is $________ and I’m not allowed to explain why until the end of the case, but I will do that if you let me. I know this probably sounds like a lot of money to many of you so I’d like to find out how you feel. Some people may feel they would have a whole lot of trouble with that amount no matter what the evidence. Others may feel they can wait until they have heard all the evidence and my reasons for this appraisal. Why way do you lean?