Sari Swears Podcast: How to Handle Non-Economic Damages

I'm bringing this episode back because this question keeps coming up:

“How do I explain my number for non-economic damages?”

And here’s the truth…

You don’t.

At least not the way most attorneys try to.

There is no real formula for non-economic damages.

And when you try to force one… jurors can feel that it’s not real.

What they’re actually looking for is much simpler: Do YOU believe the number you’re asking for?

In this episode, I walk through:

The difference between price vs. value
Why jurors don’t need a calculation
And how to present your number in a way they’ll trust

If you want to actually practice this, my Damages Masterclass is happening THIS June, and this is exactly what we work on.

It’s small group, hands-on, and designed to change how you show up in court.

Give the episode a listen, and if this is something you’ve struggled with, come work through it with me in June.

Tune in NOW! 🎧

Love,
Sari

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“You’re all looking for formulas, tricks, and techniques, but that’s not what’s going to win the day. What wins is when you stand in front of a jury, fully own your number, and they believe you, not because of your calculation, but because you’ve made believers out of them.”
sari de la motte

Transcription

All right. So let's talk about what we're here to talk about today, which is how to handle non-economic damages in a trial.

And so, Jim, who I believe is with us, hi Jim, started this whole thing, in that he read my blog on price versus value, I also had a podcast on this particular topic, and said, "Can you give me an actual example?" And what he meant was, particularly when I said when you should walk the jurors through your process.

So I told Jim he may not like my answer today, but he's here to hear it anyway. His response to that was, "Well, in the jobs we do, we don't like a lot of the things that we hear." So I hate to add to that, but we'll see. You might like my answer. But, on this topic, not just even on this topic, I love that Jim reached out to me. And I want you all to feel that that's what this space is for. When you read a podcast... Or, read a podcast.

When you read a blog or you listen to a podcast and you have a question about it, don't let that stop you and go, "Oh, I'm just wondering about that." I'm here in this group for free to answer your questions. So email me, email Christine, get up on the Facebook page and say, "I have a question about this." I'm happy to jump on a Facebook Live or do a full podcast on it, and a lot of these get turned into podcasts and to further explain what I mean by some of the things, because again, we're only seeing a slice of time on a blog or a podcast. So that's what we're here to do today is to talk about that.

So, here's the problem, as you all know that when you are discussing non-economic damages, jurors, along with you, want some sort of formula. They want to know, or at least you want to provide them with a reason, or a formula, or a structure for why you came up with the number that you came up with. And here's the funny thing, is that almost in every case that I help work up, when I ask, "What are you asking?" And they tell me the number or in many cases the attorney's like, "I'm not really sure yet." When I ask them what they're going to ask for, and then they tell me and I say, "And how did you come up with that number?" No one has a correct answer. No one. I wouldn't say the correct answer. No one knows how to answer that. Let me put it that way. They say, "I don't know. I just pulled it out of my ass, or it's the right number that felt right."

And yet y'all want some formula or structure to go, "Here's the methodical way that I figured it out. And this is what I want to share with you, my thought process on this number." And what I want to suggest to you is bullshit. All right? It's bullshit, because you don't know how you came up with the number, and so you cannot then suddenly come up with this formula and tell jurors that this is how and why you came up with the number when it's not true. All right? So that's what you think about there for a moment is that we cannot manufacture something that actually isn't the case. So I want you to hold onto that for a moment and go, "Sari, well, then what do we do?" I'm going to tell you just a minute, hold on. So let's talk about this in a little bit more depth.

If you haven't read the blog, or listened to the podcast on how to talk about economic damage, or non-economic damages at trial, or price versus value, or whatever the hell I called it, you can go back to the podcast and listen to that or look through the Monday blogs. They're also on our website. If you receive our newsletter, you'll have that in one of your past newsletters.

Here's the basic gist of price versus value, and this was developed by Paul Luvera and John Colletti when John and I were working on a case of his that went to trial here in Portland, and he went up and spent a weekend with Paul Luvera as he and I are working up the case and he came back with this idea and we just used it throughout trial and now I use it in so many of my cases. Here's the basic gist:

The gist is that jurors want a formula for damages, and they want to be able to use their calculator, so it's your job to tell them when that's appropriate. So you need to say there are two types of damages, or three if we're talking about punitives, but let's just talk about two right now with the non-economics and the economics. There are two types of damages that you as a juror are going to have to decide in this case. Let me talk about where you do this later, so if I don't do that, remind me of where in trial this happens, but let me just skip the content down.

The first is economic damages. This is really what we're talking about when talking about price. What's the cost of getting somebody back on their feet? What's the cost of lost wages? What's the cost of medical treatment? That's the price of something. You're also going to have to determine the value of something, and that's a very different thing.

Now, if you are planning on saying this in, let's say, closing, what you need to do, which is where I think you should say this, primarily this is where you're handling this is in closing, what you need to do is start this early. You need to start this back in voir dire, jury selection, whatever you want to call it, so that this concept is something that jurors can rally around before you actually go and start pulling it through trial.

And you know, if you've been with me for a while, but that's my thing in general, is that all good things start in voir dire. And in fact, if you don't have voir dire in your jurisdiction, I just don't know how you function as a trial attorney because voir dire is so important. And I know we don't get much of it in federal trials and whatnot, but when you have it, it's wonderful. And here's why, is because if you can get the jurors to rally around the ideas and the themes in your case in voir dire, and I always hesitate when I say that because I think so many of you then go, "Oh, great, then I'm going to be lecturing about my trial themes and voir dire." No, voir dire is still all about the jurors and asking questions and listening. It's just that I have a very specific way of helping you do that so that they will rally around those themes and things in your case.

But when you are doing that, you start in voir dire. And so you might ask the jurors, what's the difference between the cost of something or the price of something and the value of something? And every time I've done this in my cases, I obviously am not doing the attorney that I'm working with, it's a beautiful conversation.

Just in this last voir dire studio in September, we had someone say, "Well, I've got this mixing bowl that I inherited from my grandmother and I use it every time I bake, and it just reminds me of her and the things we baked together" and so on and so forth, but, "It didn't cost very much, it cost me nothing. I inherited it, but man, the value is big." So you get them talking about cost versus value. Now, what I want you to really be careful about is so many of you, you will throw out the word "priceless." And I want you to be careful with that word "priceless" because, I'm not saying you should never use it, but when you do use it, jurors hear, "There is no cost." And that's not necessarily what we're saying. We're saying that there are two buckets.

Now, here's what I think I really want to get across in terms of this: how do we talk about non-economic damages in a trial? What formula do we use? That is secondary, my friends. The whole point of price versus value is that there is no formula for non-economic damages. The whole idea of price versus value is that one, you can use your calculator, and the other one you cannot. And here's what's going to win the day. I think this is the part that I really wanted to get across to you, is that when you own your number, and you communicate that to jurors, that's what wins them over.

Am I saying that you can't give examples of how to break that number down? Yes, you can. And many of you already know what all those examples are. There's the Craigslist ad, when so-and-so has this many days to live, and then that's this many hours a day, and figuring that at $10 an hour, you come up with X million dollars. Mitnick has his per diem argument, which is very similar to the Craigslist argument, but he doesn't make it as long, and he makes it more general. And in fact, I say Mitnick, those of you who don't know what I'm talking about, the Don't Eat the Bruises book, has a lot of examples on how to break this down. I'm sure damages has a lot of examples. Here's what's different about what I'm saying though. I'm saying a couple of things:

One, I'm saying that you don't stand in front of jurors and go, "This is how we came up with the number," because you know that's fucking not true. You did not sit there and go... maybe you did. And if you did, then hell, use it for sure. When I first got this case and I looked at life expectancy, I sat down and I thought to myself, "If that's true, then use it. But if it's not true, then don't." You need to say something different like, "Here's the number we're asking," and I'm going to tell you how to do that in just a minute, and if that helps, and "That's the number that feels right to me. After I came up with that number, I thought about it."

And it's like if I took his life and the life expectancy, now you can use the Craigslist, or per diem argument, or whatever you end up doing as a way for jurors to think about that number, versus how you came up with the number. And I think that distinction is really huge, because you know if you've worked with me before, you're listening to my podcast that what you think you will communicate, and you cannot fool jurors, at least not those of you who are my clients that are authentic, and real, and in this to show up as your real self, you cannot trick them. So you need to be honest about it. You need to be honest.

Now, here's what... I'm going to give you an example. And you may have heard this in the podcast or heard me say this on a different Facebook live about the Texas case that I just worked on back in September. So it was last month, feels like a lifetime ago.

But I was out there for a week and it was an over-served case, a Dram Shop case. And what was so fascinating about this case is that we had a drunk driver leave the bar, and mowed over three cyclists, two died, and one had some major physical issues, as well as a brain injury. And so they were asking for $100 million.

Now, that's a lot of money. I think we had three juries. In fact, if you come out and work with me, or you bring me to work with you for a five-day stint, you get three juries as a part of that. And so in every single jury, when the attorney said, "We're asking for $100 million," every single jury, they were shocked. They fell out of their chairs. We're talking about Conservative Texas where the word Liberal is a bad word. Trial attorneys are bad people. They just fell out of their chairs as you would have expected, a hundred million dollars.

At the end of opening, every single jury that we had, because we did the opening all those times... Well, we didn't do it the first one, but at the end of the voir dire of the first jury, and then at the end of the opening of the next two. So all three juries said and asked, "Can we give more?" And I would also like to point out that nowhere in any of the openings, or the voir dires, of those three times we had the juries did we ever give them a calculation of how we came up with the number, not once.

Now, a couple of reasons why that worked, and what I'm hoping you take away from today, is that when you own the number, that makes all the difference in the world. The week we worked up this case, we said the word $100 million, as many times as we could say it. We would say it when we saw each other in the morning, "You look a hundred million bucks today." We said, "Oh my God, that's a hundred million degrees outside today." We said that word until it was so freaking normal. In fact, people ask me a lot, "Should I say the number in voir dire?" If you can in your jurisdiction, yes, if for no other reason so that you are practiced in saying it, and that you make it so normal for jurors to hear, especially if you have a huge number, that it becomes normal for jurors to hear that number. I think that's absolutely essential.

Am I going to say that you're going to lose a trial if you don't say it in voir dire? No, there's a lot of great trial attorneys that don't think you should at all, but from my experience, when someone really owns the number, they can't wait to say it and get it ringing in the ears of jurors.

Now, a couple things, when they said that number, when they said a hundred million dollars, it was actually beneficial for them not to give a calculation, because here's what happened. When the juror heard the number 100 million dollars, their brain just went into freak out mode like, "Oh my God!" And they started to try to figure out why they would be asking for such a big number, on their own, between the jurors talking, they're like, "Well, there are three people, and you said there were six kids, right?" And they started to do that. They started to come up with their own calculation.

Now, the only reason that works is because we left it till the end, after the attorney had done all of his work in building credibility, and connection, and getting all the jurors on the same page. By the time he had a lot of credibility and connection with them, they respected him enough to go, "He must have a reason why he's asking this number." So their brain went to figure it out.

Now, when he was actually in the opening, this is what he said, and I think this is huge, and it was so authentic, and that's why it worked. So this is not a technique I'm about to teach you, this is an example of someone who owned their number. He said, "In this case, we are asking for a hundred million dollars, because frankly, I don't have the courage to ask you for what it's really worth." And at that moment, the jurors were like, "Can we give more?"

Because he had built so much credibility, they didn't fucking need a formula to buy into the fact that this man was asking for the right number, because they believed in the man, not the calculation. And that is what, by the way, all my work is about. You guys are looking for formulas, tricks, techniques, and I get it, I'm not saying... I'm not judging you for that. The work you do is extremely difficult. The work you do is hard. There's so much on the line, your own money, your time, the future of your plaintiff, but formulas are not what is going to save you, it's owning your number. It's standing in front of the jury. It's building credibility.

And back in voir dire, when he said, when he said a hundred million dollars, they were super shocked. And first of all, that's okay with us. That's another thing I teach you in my voir dire classes is that you just accept that as absolutely, that's a lot of money. "Who here thinks that's a lot of money?" Everyone raised their hand. They're like, "Whoa." And then our attorneys always ask, "What would you like to know?"

Now, almost every juror will say to that question, "How did you come up with that number?" And so in your attorney brain, you're going to want to go, "Oh, here's where I tell the formula." Nope. You can have a formula in closing, we're going to talk about that in just a minute. This is what we teach our attorneys to say:

"We have gone on a journey with these people and over that journey, that time that we've been traveling with them, as we prepared to bring this to trial, we came up with that number, and we're going to show you over trial why we think that number is justified."

Notice how, I didn't say "how we came with the number," but "why we think that number's justified."

"But here's what you need to understand as jurors, should you decide to be a juror on this case, you're going to go on a journey with these people and you're going to have to decide what the right number is. And you may decide that number is less than a hundred million dollars, and you may decide that number is more than a hundred million dollars. But regardless, you can't make that determination until you go on a journey just like we've had to go on that journey." And then of course you want to ask them, do you want to go on this journey, which is what we do at the end of voir dire.

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What I'm trying to communicate is that whatever number you come up with, when you fully own that number, and communicate it to jurors, and aren't afraid to say it out loud, and you have emotion behind your choice, like the attorney in Texas did, if you've done your job in voir dire, and you've created connection, and you have communicated credibility, they don't need a formula. They believe you, because you're believable. They believe you, because you've taken the time to listen to them. They are looking for someone to guide them. When you show up as leader and you say the number, they believe the number, because you have made believers out of them. That's all nonverbal, that's all internal work. That's what I'm trying to communicate.

Now, in closing, you can give examples. You can say, "Now, we're asking for $100 million, and here's what I want you to consider, Jury. When you think about it, there's three families represented here, and those kids are going to have to live without a father, and go through the moments." And you can walk them through that. And in John Colletti's case, where he came up with the price versus value, he talked about the idea of this man, you've all heard me talk about this case, I'm sure, here in Portland where the garbage truck took the illegal right turn and ripped the leg from his body in the intersection.

And so he said, "When I was thinking about the number and why I'm asking for this number, I was thinking about how many people would stand at the street corner and for $5 million know that they... " He was asking for more than five, he just asked about this one piece in terms of pain. "Would know that a garbage truck is going to come around the corner and rip their leg off. And here's the kicker. When they get to the other side, I'm going to give them their leg back. They get their leg back, but for $5 million, they're going to have to go through the pain of having that leg ripped off. How many people do you think would be willing to do that for $5 million? So that's one thing I was considering when I was considering my number, and that's an example of why I'm asking for the number."

So instead of coming with the formula, here's how we came up with it, you're giving examples of how to contextualize it. That's very different. But I think for me, owning it at the beginning, getting the jurors to think about the difference between price versus value, is really the important piece here. Then you can give examples in closing, because by closing, it's done. They're either with you or they're not with you by the end of opening, as far as what I teach. So in closing, now you're just giving them a little bit more ammunition to really think through the process.

But that's the whole point of price versus value. The reason we're talking about the difference between price versus value is you can't use a formula or a calculator in the value part. It's the value of something. It's just like a Picasso. Who fucking decides that a Picasso is $300 million worth, it's just this thing that we've thrown in there, and that's what's hard about this work here, too, it's feeling like we're like, "What's a life worth? $10 million, $20 million?" The thing is that there's no way to look at the book and go, "Well, here's what a life is worth, and depending on this and depending on that..." You have to do that work for the jury and come up with the number and then you own that number and then give examples of how to contextualize it. That's my answer. I'm sticking to it.

Now, having said that, I'm consistently evolving on this issue. The more I work with you, the more ideas I get, and I'll continually add to my thoughts on this, but I'm telling you what I've seen and observed in my own work life, and that is when the attorney owns his number, her number, whatever number, it changes everything. In fact, the attorney in this Texas case came to me, he's never asked for the number of voir dire. And so I said, "Well, let's do it this week, because it's low cost. These are all mock juries."

And he came to me afterwards and he said, "You know what I figured out this week? The only reason I haven't asked for the number... I've given all kinds of excuses why I haven't asked and all the things I've read, but you know what the real reason is? I realized that I never really owned my number." I was like, "Dude, that's it." And here we've seen three Conservative Texas juries ask, "Can we give more?" And we did not have a formula.

All right, my peeps, what is... Hello everyone. Now I'm looking here. Oh, Jim, you're welcome. Who has questions? Any questions?

Jim's question, "Is this topic covered in your book?" Yes, somewhat. I'm not a damage expert. Mitnick, David Ball, all those guys, there's tons of books out there on damages. So yes, I cover it in a couple paragraphs, but I don't put a lot of energy and effort into this, because, now as you've heard me talk about it's all about you! I'm all about you. In fact, that's what we really decided as we're moving forward in 2020, is that I love trial, yes, but I'm more in love with you guys and gals.

I am so interested in helping you internally, in terms of your mindset, and externally in terms of your communication. You got tons of people out there that have great ideas on content and what to say, my whole job is how to get it across. So yes, I'll cover it some in my book, but not as much as I covered the nonverbal intelligence pieces. That's in my book. But, Jim, you've been asking about the book for months. You're going to get the book anyway, right? Of course, if you haven't already ordered it.

Other questions that you guys have? I hope this has been helpful. I hope this gives you the shot in the arm that you need to really own the hell of that number. The formulas, the ways you come up with it, that's all secondary. If you want to use those in closing to bring your point home, go for it. But it really is building that credibility, and then throwing out that number, and then standing behind it. literally standing behind it. I can't tell you how many times people have said in opening, or even voir dire, "We are asking for $10 million." And they do this thing, and they step backwards.

Right there, you've just communicated it's not worth that much. So it starts here, but then you actually own the hell out of it. And we had a great attorney, I think he's on today, June is on, June and Ho, who is like incredible attorney, and he said, as he was using my method when he was at the voir dire studio, price versus value, he used the word "appraiser" and I loved that, is that jurors are going to have to act as appraisers. And I just thought that's a great way to help jurors think of their role when it comes to damages. It's a lovely way to put it.

Other questions? All right. Here's one. Darrell, hi, Darrell. "In the value bucket is per diem argument, not giving [inaudible 00:26:16] seems like own the number, then give them examples of how to justify." Yes. So the value bucket is not the per diem argument, and it's not the calculator argument, it's the owning the number. Absolutely. And then you can give them examples, you're exactly right, Darrell, of ways to think about it, not ways or reasons why you came up with the number. You can say, "This is the number that we feel is right after going through this process, this journey, with these people." So that's telling them how you came up with the number. We went through a process and a journey that you can use... "Here's some examples. If you want to break this down, here's some ways you can think about it." Do you see how that's different from how we came up with the number? Hopefully that answers your question, Darrell. If not, retype.

Jim, "I loved your answer." Yay. "Not disappointed at all. So I think I haven't owned my numbers in the past." Yes! "I look like a million bucks." Well, thank you. I think you wanted to say I look like a hundred million bucks, right? That's what you wanted to say.

Steve, "You mentioned credibility a lot. What are some ideas on building it?" Well, here we go, Steve. You've been out to the classes, not recently, might I remind you, I miss your face. But how do you build credibility? Well, first of all you become the best version of yourself and you get rid of all the gimmicks, and the formulas, and all that bullshit. And you stop today as of this Facebook Live and say," I'm done with that shit. Yes, I'm going to learn things. I'm going to read things, but I'm no longer going to try to be like, insert a famous trial attorney here, or do this method that Nick Riley suggested or whatever." That's fine. You can do the Nick Rally method, but what you have to understand, it's got to be you. You got to own that. It's got to be authentic to you. That is the number-one credibility builder.

I had an attorney come out to one of our studio classes, you may have heard me talk about this and he was so nervous that as he stood there with his notes we normally don't allow... I wont say allow, but I would suggest don't use notes, but he was so nervous I was going to let him do whatever he could do. He was shaking, like this, through the whole opening statement, and finally he put it down and then he started to tell the story, and boy did he ever come alive. And at the end of the opening, I asked the jurors, "How many of you noticed that this guy was nervous?" And they all raised their hands. And I said, "And how did that affect your view of his credibility?" And they said, "It increased it." And I said, "It increased it?! Why?!" And they said, "Because it meant he was real. It meant that this meant something to him."

You guys are trying to bend yourselves into these perfection pretzels when that's the opposite of what you need to do. I don't mean you want to go out there and be sloppy, and not be prepared, but what I'm saying is your realness is what builds credibility. And then of course, as you know, Steve, the nonverbal communication also is going to help you when you're congruent, when your palms turn down, when you're sending information, when your voice curls down, when you're communicating information, when you own that number and you say, "We're asking for a hundred million dollars." Notice the voice curls down, the palms are down versus, "We're asking for a hundred million dollars?" Nobody really does it that way, but sometimes you will be slightly approachable, which there's a place for approachability. "We're asking for a hundred million dollars?" And it's like, "Are you? Do you really believe that?" So it's first deciding you are enough and second, it's communicating congruently. Those are the two big credibility builders.

Christian, "That was great. And the first time I ever watched something live on Facebook." Yay. Thank you for being here. Michael, "I'm trying to help my newer lawyers who are recent converts from the defense bar own their number. It's a struggle. Any suggestions?"

Well, I always suggest that the minute you can't own it's too high. So if they can't own a million bucks, then it's got to be $900,000. If they can't own $900,000 it's got to be $800,000, and soon they're going to get really tired of that and want to start owning their bigger numbers. So a couple of things are checking their comfort level first, but to increase their comfort level, say it out loud, talk about it, say it to other people, meditate on it, think on it, breathe on it, put it around your house, do all the weird woo-woo shit.

I'm telling you, every good thing that's ever happened in my life is because I thought I created it in my mind first. Steven Covey in Seven Habits talks about how there's two creations, the one in the mind, and then the one that actually happens. So it's a mindset piece. Michael, as you know, is one of my coaching clients. It's all about how you think about it. Hire a coach.That's another one. So it really is a mindset thing.

June, "Can you show us an example of what it would look like when asking for the number and owning it?" Michael, "Their numbers are low." Exactly. So they've got to keep increasing that number. June, okay, so here it is. You know what? I don't know. Can I change the camera on this, Kevin, to do that cool camera angle? I don't think I can do it on Facebook. Kevin sent up an overhead camera that I used in my class the other day. I don't think I could do it here, but okay.

So you can't see my legs, but they are... I [inaudible 00:31:25] over both feet and toes are pointed forward. And so I'm going to have the palms facing down and I'm going to say, "In this case, we are asking for a hundred million dollars." Now notice that's very different than, "In this case, we're going to be asking you for a hundred million dollars." Now this looks very friendly, but that is not what you're doing. You're saying, "This is worth a hundred million dollars." Or in the opening, I say, "Now we're asking for a hundred million dollars because, frankly, I don't have the courage to ask you for what it's really worth." And he got a little teary there and it was all authentic. And that just sent the jury over the edge. They're like, "How much do you want?"

This is not a gimmick, people! That's what I want you to recognize is it has to be real. It has to be real. So yeah, write that number, put it in your journal, put it on your laptop. First figure out what it is. If you don't know what it is, if you're like, "I have no idea what the hell to ask," what would be a great thing to ask? Live with it for a while. If you can't own that, then go down. If something seems super easy to own, you need to ask for more. You should be right on the edge.

As Kevin, my fellow coach, my husband says, "What's your stretch?" It should be on the edge of being uncomfortable. If it's super comfortable to ask this case worth $5 million, you're not asking enough. You're just not. So it should be right on the edge, it should be a stretch for you. That's your sweet spot. That, by the way, is how you become an eight-figure verdict person.

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