How to argue non-economic damages

John is joined by Robert Tyson and Cayce E. Lynch, both partners at Tyson & Mendes and Co-Founders of Apex Defense Consulting. They discuss how defense lawyers can counter the recent rise in “nuclear verdicts.” Nuclear verdicts are extremely large jury awards, often in personal injury cases, in which pain and suffering or emotional distress awards are vastly disproportionate to economic damages.  These verdicts are a key factor behind the recent, dramatic rise in insurance costs. 

Over the past 15 years, plaintiffs’ lawyers have shifted tactics. While plaintiffs’ attorneys used to appeal to jurors’ sympathy for the plaintiff, they now focus on inciting juror anger against the defendant. Robert and Cayce obtained the trial transcripts from 100 nuclear verdict cases and carefully analyzed each case. They tracked 60 data points per case and concluded that defense lawyers frequently failed to respond effectively to plaintiffs’ shift to inciting anger in the jury.   

Their research identified four strategies which, when used together, greatly reduce the risk of a nuclear verdict. First, defense counsel must personalize the defendant to create a connection between the people on the jury and the people working for the defendant.   

Second, defense counsel must accept responsibility for some issue in every single case. Accepting responsibility helps take the anger out of the jury.  

Third, counsel must give an alternative damages number to the plaintiff’s claim in every case. When defense counsel fails to give an alternative number, the jury will often award significantly more than the plaintiff asked for. A University of Iowa study also found that when the defense provides its own damages number, the likelihood of obtaining a defense verdict increases.  

Finally, defense counsel must address the plaintiff’s non-economic damages such as pain and suffering. This should be done by presenting a message emphasizing the joys that remain in the plaintiff’s life. They should also emphasize the impact their alternative damages number could have on the plaintiff’s life.  

None of the 100 nuclear verdict cases Robert and Cayce reviewed involved defense lawyers who employed all four of these strategies.

Robert and Cayce conclude by advocating for a broader sharing of best practices among defense counsel, noting that the plaintiffs’ bar has traditionally excelled in coordinating and sharing information and best practices.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi