Sari Swears Podcast: 3 Components of Any Damages Argument

Most lawyers focus on how to argue damages.

Very few spend enough time truly understanding the loss.

And jurors can feel that.

In this week’s episode, I break down the 3 components every damages argument needs:

Understanding the loss
Valuing the loss
Communicating the loss

We also talk about:

Why metaphor matters
How small stories hit harder than big explanations
A simple framework I use to think about non-economic damages

Because damages aren’t about formulas.

They’re about helping jurors understand what was taken.

Love,
Sari

P.S. If this episode hit home for you, my live webinar on May 28th is going even deeper into how the H2H Method™ helps jurors connect to what actually matters in trial. We’re going beyond the FHTH book and into what works in today’s courtrooms.
Register now → sariswears.com/webinar

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“When everything says trial should be this very formal, sterile process, we have to fight against that. It’s a very human process. The things jurors talk about in voir dire — family, health, purpose, connection — those are the exact things your plaintiff lost.”
Sari de la motte

Transcription

Sari de la Motte:

Well, welcome, everyone, to another episode of Sari Swears. Today, we're talking about the three components of damages. Now, when I'm talking about the three components, I mean the three things that you need to be able to do in order to get your damages at trial. These are the three big pieces I see. If one of them is missing, then you won't be able to effectively get your damages argument across. All right, so let's just dive right in.

The first one is understanding the loss. This is, I probably think, the biggest thing that is lacking when I have worked with clients for the nearly 20 years that I've been doing this. When I'm asking questions in this place, most of the time you are like, "Well, I don't know. I got to ask my client that." Now, I know so many trial consultants are consistently talking to you about, "You need to spend time with your client. Go and spend a day in your life." Kevin and I were talking about this actually. We were asking ourselves, "Why do you think people don't do that?" It seems like such a thing that you would want to do. Your whole part of the trial that you're really trying to get across is the damage that happened to your client and how the jury can make that right. Yet, most of you skim on this piece. Again, I'm not judging you.

When we were looking at why, though, I think we came up with why, and that is the secondary trauma piece of it. We've done a podcast episode on secondary trauma if you want to go back and listen to it. The gist is that you all have to live with hearing about death and injuries and families being torn apart and bad behavior of humankind. I can understand why you wouldn't want more of that in your brain. I don't even think you recognize that you're avoiding spending time with your client for that reason, but that is my best guess. I know you're busy, and I know that there's all kinds of other things that come up when you're preparing for trial. But my thought is, and I think I'm right about this, is that you have issues with that secondary trauma.

In that episode, Kevin and I talked about all the things that you can do to process out that trauma: self-care, having a coach, having a therapist, having routines. I highly recommend that you go back and listen to that episode. In fact, we'll add it to the show notes so you do not have to search for it. I think if you just go on our website, sariswears.com/podcast and you search for secondary trauma, it will come up.

I think the second reason why you don't spend time with your client is because you're not exactly sure what to do when you're there with your client. Like, "Do I just follow them around or whatnot?" So we have been training our clients or, yeah, our clients when they're talking to their clients to use two very specific things that I think will really help both understand the loss and then help us as we continue with the other two components.

The first one is the use of metaphor. I have to give Jody more props because this is from her. I don't know if she got it from someone else. If she did and you're listening, then props to you as well. But she does a thing with metaphor where ... Again, metaphor is something is like something else. That's actually technically similar. Metaphor is something is something, right? But we tend to think of it as something. So I'm just going to use a metaphor because when's the last time you heard a smile? The point is that you're going to ask your client when they say, "It just hurts," "Hurts like what? Hurts like a bunch of bees stinging you? Hurts like pinpricks? Hurts like it's on fire?" This is going to get you some colorful language. We know that the brain likes metaphors, and it can accept them because it's something easily accessible. So you can go and mine for metaphors. Or, "It's really hard to get up in the morning." "Hard like what?" So you're just going to use that little phrase, "Like what?" to get information from your client.

The second thing that we've trained our clients to do when they're talking to their clients, the plaintiff, is to use vignettes and to get those vignettes from their client. In fact, the best place to get the vignettes is from the person closest to the client because they will be the ones that can give you this. They're not as close to it as the client. What is the vignette? It's a short, I wouldn't even say story, like an illustrative blurb that really shows, and that's what we want to do is show instead of tell, what is happening.

For example, instead of saying, and I've used this example before, I'm sure, here on the podcast, "John has memory issues ever since the brain injury," you might say something like, because you got this from when you're working with your client or spending time with them and you talk to the wife, you're going to hear from John's wife and she'll tell you how on the regular she will find John just standing in the hallway staring, and she'll say, "John, honey, what's wrong? What's going on?" He'll say, "Well, I was coming into the kitchen to help you make lunch, but I forgot how to get there." Notice how the vignette is so much stronger than just saying, "John often has problems with memory." So these vignettes are the things that you are mining for as you are spending time with your client.

The thing is that if you do not properly understand the loss, then you cannot value or communicate the loss, which are the other two components. This is where it all starts. So you need to spend that time with your client really understanding and grabbing that evocative language through metaphor and through vignettes. I continue to say, being a professional question-asker, which is what one of our coaches once said about what being a coach is, is the more that you can learn about how to ask good questions, how and what questions, the better that's going to go. What's that like?

Think about our five follow-up questions that I've taught you to use in voir dire. "What was that like? How important is or what's important about that? Say more. Tell me more. What else?" Those are great questions, not even just the question, just pausing. "What's important about that, John?" or, "Say more, Sally," and you just pause and breathe and wait. You will get some of the best stuff. How do you get vignettes? You're not going to say, "Give me a vignette." You're going to say, "Give me an example. How do you know John struggles with his memory? Where do you see that show up?" All of these things are going to help you with that first component, which is to understand the loss.

Which then brings us to the second component of any damage argument and that is you need to know how to value the loss. Now, as we've talked about before in the podcast, there is such a big difference between economic damages and non-economic damages and that when you are talking about them in the same way, that's what's confusing to jurors. Because when we talk about money and we think about money, money buys things. That's how we in society think about money. So when we're talking about non-economic damages, that's not buying a tangible thing. It's not buying a new leg or buying life for someone who has died. So it doesn't make any sense to jurors.

When you yourself are putting together your non-economic ask and you're trying to value the loss, I've got a few ways for you to think about that, which you can also use when we get to the third one, which is how we communicate the loss. But valuing the loss, what we've come up with, and we're still flushing it out, is what we call the pillars method.

One of the things I want you to think about is in everyone's life there are pillars that hold them up, so to speak, that make them who they are and able to live their most fulfilling life. If you were to think about the big pillars in your life, most of you would probably think of things like, "My spouse, my kids," probably what you do for work. That wouldn't be true for everybody, but I think most of us in this world at least love what we do. Then there might be things that kind of make you who you are. Maybe that's your sense of humor. Maybe that is your ability to write. Maybe that's your ability to connect. Maybe it's a hobby that you have. Maybe it's the friendships that you have created in your life. Maybe it's your ability to help others. Whatever it may be, there are certain pillars that make up who a person is and how they function in the world.

Well, the way that you can use this to value the loss is to think about, and this again goes back to understanding the loss and you can use this metaphor with your clients when you're spending time with them, is, what are the pillars in their life and what pillars were knocked out due to this injury or death and/or cracked or damaged? So if it was the death of a spouse, that took out that pillar completely, but I'm sure it affected all the other pillars. It affected the children pillar. It affected perhaps a hobby that you did together.

You can kind of be thinking even in your own mind in a mathematical way, say there's five pillars to a person's life and as you look at your client and you think about, these were big pillars, the way they were active in their church, their grandkids, their hobby. I don't know what they are. You can assign value to each one of those pillars, and then take the value away for the ones that were taken away.

Can you believe it's been seven fucking years since From Hostage to Hero, the book, came out? I can't. Join me for a webinar on May 28th where I'm going to show you how the H2H voir dire method has evolved beyond the book. You can sign up at sariswears.com/webinar. There are no replays. You've got to be there live, but it is CLE eligible for credit. Go to sariswears.com/webinar. See you there.

It's not rocket science. It's not going to fix all the problems about how to value the loss. This is a very personal question. One attorney might ask for $10 million in a case where another attorney would ask for $100 million in a case. You know there's no formula here. But this is one way that you can be thinking about how to value this loss. This is just for the non-economics.

Now, another way that we have you think about valuing the loss in the H2H method is we have three things that you can use. One is to think about what the number represents. It represents those pillars. So that's one way to think about this. If you say there's five pillars, and let's just make it easy, they're all $10 million each, so this is a $50 million case if they were all destroyed. But let's say only three of them were destroyed, so there's $30 million, and the other two were slightly damaged, so let's say they lost maybe $2 million on each of those, or $34 million is what we're going to ask. That's one way. So that's represented.

But we also want you thinking about what this number does. Is it a high enough number that it's going to hold the defendant responsible? That's another thing to consider, not just the loss to the client, but does it actually do the job that it's meant to do, which is to hold them responsible.

The third thing, and some people have said you couldn't say this, but to me, I think you can, is, what does this number prevent? Is it a big enough number that they'll think twice before doing this again? Now, that's not punishing them. It's just money talks. Hit them where it hurts.

So you can also be using that as you think about the right number and you value this, is the pillars method, which goes with that first one of what the number represents, but also, is it the right number in terms of what it does, i.e., does it hold them responsible, and is it the right number to prevent it from ever happening again? Whether or not you ever share that with the jury is up to you. These are just thought experiments that you can be using to value the loss.

Once you understand the loss and you've done some internal work and maybe even external work with some of your colleagues on how to value the loss, obviously the big piece of the damages argument is communicating that loss to the jurors. But I want you to recognize that if you've not done the work of the first two components, understanding it and valuing it, you won't be able to communicate it properly.

So here, we have a couple of tools for you in terms of the third component of damages. The first one is that you need to start the damages conversation in voir dire. That's with our price versus value conversation and having those resonant conversations. Voir dire is where the jury solves all our problems. When I ask people, "What is the purpose of voir dire?" in my mind, the number one answer to that question is to let the jury solve your problems.

It's true here with damages. Because when you have the question posed to jurors, "What is something in your life ..." which is part of our price versus value, "What is something in your life that doesn't come with a price tag but has immense value to you?" they will be giving you the pillars in their own life. They will be saying things like, "My spouse, my kids, my hobbies, my health," all the things that your plaintiff either lost or were damaged by whatever happened here. If we can get that from jurors, and we can, we do such a great job of pre-loading this so that when we start talking about the things that our plaintiff lost, they can identify with that. They no longer think of this as a thought experiment. It's something that we all care about.

Notice that all the things that you're going to be getting from your juror in that price versus value conversation, there's going to be a lot of crosstalk. A lot of people are going to say family. A lot of people are going to say health. A lot of people are going to talk about hobbies. That is the human experience. See, what we're trying to do is create a human experience at trial. When everything says it should be this very formal, sterile process, we have to fight against that. It's a very human process and it's very core, and the price versus value conversation in voir dire starts that.

When you're communicating the loss, you can use, should you choose to, the pillars method. You can come back and say, "You all shared with me the things that hold up your life, that make you who you are. In this case, those things are X," for your plaintiff. You can talk about that. But you can also use those three things, what the number represents, what it does, what it prevents.

For example, you can say, "I thought about three things when I'm thinking about this number," what you can actually say to your jury, what this number represents, what this number does, and what this number prevents. "First, I thought about what this number represents. It represents ..." and then you can have all the pillars, the things that the jurors shared with you, things about your plaintiff. "These are the things that make us human, that make life worth living. So I knew it needed to be a big enough number to communicate how much these things matter. Next, I thought about what this number does. This number holds the defendant," again, you would say the actual name, "responsible. So I asked myself, 'What amount of money would truly hold them responsible?' Finally, I asked myself what this number prevents. I wanted a number that would help prevent this from ever happening again."

Now, here's a piece that I add. "But one thing I did not do is ask the plaintiff," again, I would use their name, "how much money they wanted. You know why? Because the plaintiff doesn't want money. They want what was taken from them. Unfortunately, even you cannot give them that. All you can do is return a number that makes up for what was taken from them and, in doing, so holds the defendant responsible and prevents this from ever happening to someone else." So that's one way you can communicate the loss.

There are obviously all kinds of other damage models that you can use to communicate the loss, whether that's per diem, my least favorite, the briefcase model, the golden years model. There's all different kinds of things out there that you can use to communicate. But to me, the number one way is to start that in price versus value and bring it back. We do bring that back in closing when we talk about, "Here's what the price damages are. Those are economic harms." Then right before what I just read to you, we talk about, "Now let's talk about the value damages and how we came up with that number." Then, boom, we lay it on them with the pillars method and it represents, does, and prevents.

We also have another tool for you, which is called THE Damages Story, the in all caps, meaning it is the story that really communicates what was lost here. Randi McGinn is such a queen in all things, but particularly in the damages story. She has such a knack for finding the story that really represents the loss but will resonate with jurors.

She tells the story, and I probably have shared it before, about a little boy who lost his mother and how she told the little boy before she died that whenever he needed her, she would be up on this little star and he could talk to her. I'm not telling the story very well at all because I'm not storytelling right now. I'm just giving you the gist. They have the funeral, they can't find the little boy, they find him, he's outside, and he's looking at that star. Now, the way that Randi tells it, there's not a dry eye in the house. I probably am not telling it right now due to secondary trauma. Thank you, Randi, because I always cry when I hear that story. But the point is without saying, "This little boy lost his mother and that's a big deal," she showed the jury what that really looked like.

Again, it comes back to understanding the loss. One of the things you're looking for in that time you're spending with your client is the damages story, the story that's really going to represent what was taken here. It doesn't have to be this big dramatic thing. It can be something that just so quietly communicates, "Yeah, that was a big loss."

But the point of today's episode I hope you're getting is that these three components work together. It's not until you can understand the loss, that you can really value the loss, and when you both understand and value the loss, then you can communicate the loss, and they're all pinging off each other all the time. It's not just, "How do I talk to jurors about this?" You have to do your work ahead of time to really understand it, spend some time valuing it, and then spend some time thinking about how you want to communicate it. So I hope that helps, and we will talk again in another episode. Talk soon to my friends.

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