Lawyers Weekly USA, May 11, 2005 Defense
calling damages experts decreases verdicts Many defense lawyers fear that by calling their own damages experts at trial, they appear to be conceding liability. But the research says they're wrong, according to trial consultant Edward Schwartz of Lexington, Mass. Studies show that putting on your own damage experts only marginally increases the defense's chances of losing on liability, and it has a huge impact on decreasing any verdict. Schwartz, who has taught about juries at Harvard and Yale, said that jurors have no idea how to assign a monetary value to a plaintiff's injuries. So when defense attorneys content themselves with cross-examining the plaintiff's expert, they cede control of the entire monetary debate to their opponent. Jurors like figuring out liability, he said. But they absolutely hate - hate - calculating damages. They have no idea how to attach a number to damages of this magnitude and they are desperately looking for guidance. Plaintiffs' lawyers have capitalized on this fact for years,
calling a parade of experts on lost wages, life expectancy,
psychological damages and anything else they can think of
that will ratchet up the final tally. Either way, the plaintiffs give jurors what is known as an anchor - a specific figure to start from when discussing the value of such intangibles as a lost life, psychological damages or the amount of punitive damages that is appropriate to punish particularly heinous behavior. Schwartz said that many defense lawyers are hesitant to do the same, relying instead, on their cross-examination of the plaintiff's experts to minimize damages. The result is often disastrous. In some of the huge tobacco verdicts, the anchor the jury started with was the annual advertising budget of the tobacco companies, he noted. That had nothing to do with the real damages, but the jury started with the number suggested by the plaintiffs. According to Schwartz, psychological research shows that when juries calculate damages, they operate on an anchor and adjust strategy. So if the plaintiff's number is the only one suggested, that's where they start. Then they adjust the number up or down based on the perceived credibility of the plaintiff's expert and the effectiveness of the defense cross-examination. By being completely silent on damages, the defense is conceding control of the anchor to the plaintiffs, said Schwartz. When the defense suggests an anchor of their own, juries tend to start at the midpoint between the two anchors and adjust the award based on which side they found more credible. Research shows that this can reduce the damage award by 30 percent, he said. Yet that same research shows that it has a relatively minor impact on liability verdicts. Schwartz has seen this phenomenon first hand. I worked for the defense on a case recently in which we were fairly sure the plaintiffs would win on liability. This case was a loser. It was a med-mal case with an unsympathetic defendant - a doctor who used steroids to treat asthma, causing his patient to develop a degenerative hip condition. The case eventually settled, but not before the defense gained some valuable information to bring to negotiations. Schwartz ran the case before two mock juries. The first group watched a presentation in which the defense offered no damage experts. In the presentation before another mock jury, the defense put on experts who offered a counter number. The verdict awarded by the second jury was 40 percent lower than the first. The interesting thing was that, with the second group, the damages issue did not come up once while the jury was discussing liability said Schwartz. Copyright 2005 Dolan Media Newswires
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