Sari Swears Podcast: What You're Getting Wrong About Non-Economic Damages

Let’s talk about money.

Specifically: what money can buy... and what it can’t.

That distinction?

It’s everything in trial.

And it’s everything when it comes to damages.

Economic damages? You’ve got bills, life care plans, receipts…

Non-economic? You're asking the jury to put a number on grief.

On lost joy. On the inability to hold your child again.

In this podcast episode, I’ll show you EXACTLY how to:

✅ Separate price from value in voir dire, opening, and closing
✅ Use stand-in language and metaphor to anchor your ask
✅ Reframe the jury’s role so they stop thinking they’re buying something and start seeing what their number really represents

If you’ve ever struggled to confidently ask for a big number… This one is for YOU.

Tune in NOW! 🎧

Love,
Sari 💖

P.S. I threw in the 3 questions I use in closing to reframe damages every time. You can thank me later.

➡️Listen on Spotify

➡️Listen on Apple

➡️Watch on Youtube

➡️FREE FB GROUP FOR PLAINTIFF & CRIMINAL DEFENSE ATTORNEYS

“You're not pricing the pain. You're pricing the value of relieving that pain. You're pricing the value of reclaiming your life. What would you pay to get that back? That's what you're asking the jury to consider.”
sari de la motte

transcription

Here's the fundamental truth that if you do not understand this, you will never understand how to talk about non-economic damages with jerks. Are you ready for it? It's going to blow your mind. Here it is, the fundamental truth. Get a piece of paper out, if you're not driving to, write this down. Money buys things. And you're all like, "That's it? That's the fundamental truth? Sorry, I know that money buys things." You're listening to Sari Swear, on the Sari Swears podcast. Well, welcome everyone to another episode of the Sari Swears podcast. Fuck yeah. I'm here with you again today talking about what you are getting wrong about non-economic damages, because y'all are getting some stuff wrong and I'm going to help you not get that wrong. Again, I'm going to remind you that we have a brand new freebie for you. Eight strategies, two eight figure verdicts.

If you go to sariswears.com/8strategies, like the number eight, I'm drawing it with my fingers if you're watching, the little swirly swoop, and strategies, /8strategies, you can download the first three for free. Go check that out. We want you to get those eight strategies. I think they're amazing if I do say so myself, which I do say so myself. All right, so we, back in October, did our first ever Command the Courtroom on damages. And if you're not sure what Command the Courtroom is, Command the Courtroom is our 12 people max small group, two days on your feet learning, you get to bring a case so you can charge it to a case, you actually are required to bring a case to work on when you're here, and it's me and Coach K at the front of the room working with you.

If you can do that one, on opening. We've got one on closing coming up in January, but our first ever damages one was in October, and you might think, "Two days on damages." Oh my god, y'all, we could have spent a week on damages. Because this is where we have trouble, as trial attorneys. And I say that in love because I'm going to share today why I think we have so much trouble with it and why it took us two days to do that. And by the way, we're going to be doing the damages summoner again in 2026. By the way, we're going to have our schedule out of all the command in the courtroom so that you can go and look at that hopefully before January, but at least in January that'll be up on our website so you can go and check and get registered because I think we're only doing six.

So six times 12 is a number that I don't know what the number is right now. I think that's 72. So that's the most people that can come out next year. And we've got thousands of you listening to this podcast and on our email list, I don't match very well. I'm not down with the math thing. My kid is down with a math thing, which we're like, "Is it possible that we adopted a kid and didn't know? How are they," I got to remember them. It's not she, it's they, "good at math, when Kevin and I suck at math?" We suck at math. Speaking of math, this has nothing to do with math, but it was so funny when we were talking to David about taking over the podcast and we were just chatting in the other room this morning and I was like, "Do you know where Gretel is?"

And he's like, "What? Who's Gretel?" And I'm like, she's probably in Kevin's closet in his office. And he's like, okay, there's a person in the closet. And then I had to explain that Gretel is this plastic head with blonde hair that I made Kevin buy, some of you may remember this story, because he used to have me come out for all our video stuff and stand there doing nothing, which for me, a very impatient person, while he got the lighting right, I was not willing to do, so he bought Gretel off Amazon or somewhere, and then we would put her around the office in various places to scare our employees. So I was like, "Where's Gretel?" So anyways, that has nothing to do with anything. It just reminded me to talk about Gretel. I should bring her into one of these seminars. In fact, David should actually put her here next to me, so it's like a guest.

We could interview Gretel, except she doesn't talk. If she talked back, that would be a little bit concerning anyways. Well it's funny, at that moment we're talking about Gretel who? David's like who? Then Meg walks in and she's like, "Do you still have the saddle?" And I was like, "Oh, you mean the sex toy?" And then David's like, "Okay, I quit now. This is crazy off-the-shit stuff." And I'm like, "Wait, let me explain." And so when I spoke at KAJ last year... Man, we're really going off the rails right now, Kentucky Association of Justice, they gave all the speakers a speaker gift and their speaker gift because the Kentucky Derby was this bridle or I don't know what you call it's not a saddle but it's a horse thing, it's leather and it had the name on it. And so Jayvon, who was an H2H crew member, he was president that year, gave it to me in front of 300 people.

I said, "This is a sex toy, right? This is a sex toy." So all that converged today and made David very confused, but now he is up, he's in the up and up. He knows what's going on. All right. I don't know what that had to do with anything except for I'm sharing the things going on in H2HQ today. So damages, this is where y'all struggle. So what do we struggle with? Here's what we do not struggle with. We do not struggle with economics. Now the one place we struggle with economics is whether we should keep them in the case or whether it's a low anchor and all that. That's not what I mean. We don't communicate them to the jury, where we really struggle is with the non-economics. My question though is why, and here is the big fundamental truth.

If you get nothing else today, you have to leave with this. Here's the fundamental truth that if you do not understand this, you will never understand how to talk about non-economic damages with jurors. Are you ready for it? It's going to blow your mind. Here it is, the fundamental truth. Get a piece of paper out, if you're not driving, to write this down. Money buys things. And you're all like, "That's it. That's the fundamental truth? Sorry, I know that money buys things." No, no, no. What I'm telling you is that that is why non-economics are hard. Let's think about this with economic damages. This is why economic damages are easy, because we're going to show the jury receipts and invoices and life care plans, and all the things that money can buy. We all conceptually understand that the way money operates in our society is to buy things, whether that's actual tangible things or to pay for services, right?

Services and goods. You hear that all the time. So I'm not tangibly giving people something when they hire me as a consultant. Sometimes they get a workbook or whatever, but they're buying for... I was going to say my time, but they're not buying my time. They're buying my genius, right? They're buying what they hope we create together by the end of that, which we almost always do. I would say always, right? It's a surgery, we're paying for something somebody did for us. That's why it makes sense because that's how money operates in our world. And where you are all getting off on the wrong foot with damages is that you are trying to use the same model in which we talk about economic damages to explain non-economic damages. And that is a problem. We know that jurors will give economic damages all day long.

If I say to my jury, "Hey, this case is about someone who stole $10, how much would you award in a case like that?" Although I would never say award and I would never ask any of these questions, you get my point. They would say, "$10 maybe, plus interest." In fact, Randy McGinn does that in some of her juries. She'll say, "If this was the case about a bank that loaned $10 million to somebody and that person didn't pay it back, would you be able to allow $10 million in your verdict?" And they're like, "Yeah," and people get it right. Money buys things, you lend money, you should pay it back, so on and so forth. The problem is that non-economic damages are not the same. And when we use the money concept that we all understand and know and try to discuss non-economic damages, it just doesn't make any fucking sense. And when things don't make any fucking sense, jurors just nope out, which is why we don't get the damages that we need to be getting at trial.

Now, they either nope out and we get no damages or we get low damages and here's why. Because they will use what they understand, which is economic damages. Let's say that you have even half a million in economic damages in your case, and they'll say, "Well, okay, I guess for them the non-economic damages maybe three times that." So you'll get 1.5, and half a mil for your economics, and now you've got a $2 million verdict. When in actuality, the non-economics should have been 10, not 1.5, but because you didn't know how to talk about that with your jurors. We are leaving money on the table. So this is why we spend so much time on this back in the H2H crew talking about how to talk about money, and we have a brand new closing template that we're using and all of that said the first thing, the thing that we need to do if we want to avoid them noping out altogether, because again, they'll do that when they're confused or low damages, is we have to separate economics and non-economics altogether.

We have to talk about them like they are two totally and completely different things and that is not how most of you talk about them. Most of you talk about them as if they are the same thing, just a little different. No, no. If you do that again, they're going to either anchor low with the economics or they're going to use it as a formula, which if you read, don't read, Don't Eat the Bruises, by Mitnick who I adore. Don't be talking shit about Mitnick, even though I don't agree with him on the whole pie eating thing. I love that man. He says, "If you are actually asking for 1.5 million in non-economics, then that's a great way to do it. Suggest three times this. But most of the time that's not the case. Most of the time we want bigger non-economic damages." So, the place that we start that separation in H2H method is in voir dire, and that is in our price versus value process where we talk about how there are two different types of damages.

In this case, now we start by asking jurors, "What can money do?" Now, notice the language there. It's not what money can buy, it's what money can do. We asked jurors, "What can money do?" Now even in that scenario, they're going to give us things money can buy. Even though I said they do, they're going to give us at least first things money can buy. So they're going to say things like medical bills. So I'd probably say something like, what can money do when someone's injured and they'll say, medical bills or pay for damage property or pay for lost time at work. That will come out of their mouth first every time because again, it's not because they're evil and horrible and they don't want to give you money because that's how money works in the world. That's where our brain goes to things that money can buy. Now, that doesn't mean I'm going to say, what can money buy?

I'm going to say, "What can money do?" Because even subconsciously, they're going to be thinking what it can do. And once you get even one thing where somebody says, "Well, it can make up for or... It can... Pain and suffering," or whatever you're going to, we physically separate them. So as we are asking the juror and they're saying medical bills and all, we write that on one flip chart that's to the right of the left of the courtroom. And then as soon as I hear pain or suffering or makeup for not being able to do the things that you love, we don't label them yet, but we walk all the way over to the other one and we write it on that one. We don't even label them. We just say, "What else?" Once one person says a non-economic damage, normally the group will give you more, but you can also say, "What about things like no longer being able to do the career that you love? Does that have value?"

You can add that most of the time they will give it to you. So we start by separating it there. We have a whole process there, and that's not what I'm talking about today, but we separate it. We separate it again in our opening statement when we're talking about in our how money can help, although I'm changing that to what money can do section, our nine part template calls it how money can help, but I'm talking about what money can do, and we use David Ball's Fix, Help or Make Up For, and we talk there about the things money can fix. Those are economics, right? We can repair bones, we can repair damage, we can... Right? Things money can help. So we can hire a caregiver, we can put in a wheelchair ramp. And then we separate again. But there are things that cannot be helped or fixed, and those are things that can be made up for.

And those are those second types of damages again that we talked about in voir dire. The reason we call it price versus values, because money, again, is something you buy. It comes with a price tag, right? When the hospital sends a bill, it doesn't send it in and just says, "Pay what you think." It has numbers on it, it has a price on it. When we go to a store and we pick something up, it normally has a price tag on it. "Oh, I picked something up the other day and I put a price tag on it." And Kevin's like, "Well, if you have to ask, maybe you can't afford it, right?" Some things don't have price tags on them, but even there we use different languages. We say there are price damages. Those are economics things that come with a price tag and they're on value damages, things that don't come with a price tag but have value.

So we started that conversation there. Now, let's talk about an opening, how we separated even more. There's a way to separate them without even you separating them is to talk about non economics more than you talk about economics because they're more important. Just today in our voir dire circle call, we talked about how you can actually change the tone of your voice to indicate they're more important. So you can say, "Now, these are the easy damages. These are the ones you can take out your calculator, you can add it all up, you can check our math and boom, you get a number," right? Notice my voice. But these, as they walk to the second flip chart, these damages are more difficult because these damages have value, but they don't come with a price. Notice how just non-verbally I make them different, I separate them?

In opening, I'll talk less about economics and more about non economics. That's another way I separate them. I give more time to the one that is important. Now, here's one that may blow your mind because when I taught this in the closing seminar, people were like, "I had never thought about this before." Let me ask you, when you're talking in closing and you're going into the details about the things, which one do you do first, economics or non economics? Yeah. If you're like most people, you start with economics and then you end with non economics. And I get that with primacy recency, but I suggest you do it the opposite because which one's more important? It's non economics. So in the H2H closing template, we start with economics. That way you also don't anchor a lower number. We don't start with 300,000 and then start talking about something that was 10 million.

We start with 10 million and then we're like, "Oh yeah, and then here's the economics," and they're about 300,000. It's an afterthought because it is an afterthought. It's not the most important thing. Non-economics is the most important thing. Now, one of the things that is in the new template that I did want to share with you today, so I just have to open it here, I want to make sure that I have it so I can read it to you. We're talking here about money and what it represents. Because here's what I want you to understand too, is that in this case, money isn't buying something, and you may even say this to your jury, money is not buying something in a non-economic sense. What money does... And I'm saying this to you now as attorneys, I want you to think about it this way.

It's a stand-in for something else. It's making up for peace. It's what amount of money, and you can use this as you think about what number to ask for as well, what amount of money is the appropriate amount of money that would stand in for the thing that is no longer here, whether that is a person or whether that is something that they were able to do and they no longer can. That changes the conversation, does it not? I know it did for all of our participants in the damages seminar because they were thinking, "Oh." Almost all their numbers went higher. What's the stand-in for never being able to trust your doctor again? What amount of money would stand in its place and be able to hold the weight of that, you can think of it like a pillar. Can stand in... Like a leg was swept out from a table, or chair.

That leg that we're going to replace has to stand and hold the weight of the person sitting on it. What's the right number? But, here are the three things in our new template that I wanted to share with you, how we introduce the number. And so this is scripted, which we rarely script things, but I put it in here. And again, I don't ever expect you guys to say it word-for-word, but just I wrote it out so you had an example, and so this is step five where we're talking about the money, but I'm taking out of context here, which is as I was thinking about what amount would stand in for the things money cannot buy in this case... Actually, let me start back with step four, which is separating price from value. I'd like to start with the value damages first, because they are the most important.

These are the things like, and then you put in things that you got from the jurors in voir dire, like walking your daughter down the aisle, or a beloved pet or whatever. Time with family, hobbies, a cherished pet. They don't come with a price tag, but they have incredible value to all of us. As you've seen over trial, these are the very things that were taken from the plaintiff. You wouldn't say plaintiff, but I don't know the name of your plaintiff. So I'm just saying plaintiff here. These are the things that money cannot fix or help. Money in this context must act differently than how we usually think about money. So notice there, I'm even telling them, you can't think about this in the same way. There's another separation. It has to make up for something instead of buying something. It has to stand in for the thing that cannot be bought.

Do you see how this changes the conversation? I hope so, and you're welcome. As I was thinking about what amount would stand in for things money cannot buy in this case. I thought about three things, what this number represents, what this number does, and what this number prevents. First, I thought about what this number represents. It represents that, whatever the non-economic damages are in your case, matter, these are the things that make us human and make life worth living. So I knew that this number needed to communicate how much these things matter. Next, I thought about what this number does, and what it does is hold the defendant, although I would use their name, responsible. So I asked myself, "What amount of money would truly hold the defendant responsible for taking these things away from the plaintiff?" And finally, I asked myself what this number prevents.

I wanted a number that would help prevent this from ever happening to another person again. Now, on that last one, you may be like, "Whoa, whoa, whoa, that's too close. That's too close to punitive damages." Some of my lawyers have said it's too close. Other lawyers are like, "I could totally get away with that." The point is that you can have three different things. This is just an example. These are the things I thought... Maybe you thought of three different things as you were thinking about the number, but here's some things to play with. What it represents, what number would hold them responsible and what it prevents, was what I came up with and would work in several jurisdictions. It may not work for you. Now, this is the one piece that I think everybody could use, which is, but the one thing I did not do is ask the plaintiff, again, I would use their name, how much money they wanted, and here's why. The plaintiff doesn't want money. They want what was taken from them and unfortunately not even you can give them that.

All you can do is return a number that makes up for what was taken from them, and in doing so, hold the defendant responsible and prevent this from ever happening to someone again. The point, my friends, is that you have to teach the jury to think about non-economics differently. And we do that by separating them both on different flip charts, both in fix and help and make up for both in the way that you use your tone of voice, both in which one we talk about first, right? There's always that we can separate them. And you teach them that it is a stand-in for something. It's not a number that will buy them something, it's something that stands in for something. Really, you can say to the jury, this number represents what you as a jury, how much you value these things that, again, are common to all of them, not just to your plaintiff. Family, how much family matters, how much your vocation matters, how much all that. That's the number you have to return. That says, "This is how much we as a community value these things."

So the last thing I'll say about this is in order to properly talk about and teach the jury to think about non-economic damages differently, is that you have to deal with your money stuff first. We had a whole session on that in our two days where we just talked about our own money stuff, which I'm so grateful that the people were willing to do that. Because if you have shit around money, and if you think that you're being greedy, and if you think the number that you're asking for should be the number that doesn't make you look greedy, then you got it all wrong. The number should be the right number that stands in for the thing that we can't ever replace and that we can't fix and that we can't help. That's the right number. It has zero amount to do with what makes you feel guilty or... What's the word that I'm looking for when you... Oh shoot, it's leaving me. But that's not the right number. That shouldn't even be part of the conversation. Now, naturally, we all have problems talking about money and I've always said...

Oh, I said I would never say that again. But yeah, I've always said that, "Y'all deal in money. So if you don't fix your money shit, this will always be a problem for you." And the things that I've talked to you about today will always be an issue if you don't fix that first. So, I want to end with that, that these are all things that you can do, but until you really work on your money problems and issues, this will continue to be a problem. Now, luckily back in the crew, I have a whole training on how to deal with your money shit. So come join us. You can join at sariswears.com/play, if you want to come in there and play with us. But I hope this helps really differentiate why it's difficult, because money buys things, and you have to teach the jury that in non-economics, money's not going to act that way. It's going to act in a different way, and my friends are going to change the whole game. All right, I'll talk to you next week.