Summary
When thinking about defending against damages, the focus should center on an overall damages strategy rather than a simple series of tactics and techniques. For example, using equity rates of returns to develop a discount rate for reduction to present value may be an important tactic, but the strategy asks how that tactic advances the overall defense of the damages claim. This article is intended to prompt a sophisticated and holistic approach. Its purpose is not to suggest that defendants should deny damages, but that they should strive for a reasonable approach to damages. Defending against damages claims and reducing the dollars associated with them involves more than simply arguing for lesser amounts than those suggested by plaintiff's counsel. Attacking damages requires both tactical and strategic thinking. It also requires the ability to find the right words to talk comfortably about damages. The groundwork for attacking damages is laid in voir dire by making the jurors psychologically comfortable with the defense of both liability and damages.
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Extract
Defending Against Damages Claims
I.
INITIAL CONSIDERATION: IT'S ABOUT BOTH TACTICS AND STRATEGYWhen thinking about defending against damages, the focus should center on an overall damages strategy rather than a simple series of tactics and techniques. For example, using equity rates of returns to develop a discount rate for reduction to present value may be an important tactic, but the strategy asks how that tactic advances the overall defense of the damages claim. Does the discount rate indicate that the overall dollars suggested by the defense are too low? Does it make the overall damages package contemplated by the defense seem too risky? Does it provide the opponent with an opening to attack all other parts of the defense's damages using a single approach?This article is intended to prompt a sophisticated and holistic approach. Its purpose is not to suggest that defendants should deny damages, but that they should strive for a reasonable approach to damages. The most important consideration in this regard may be the jury's perception that the defense is helping them to identify reasonable damages rather than persuading them to deny a legitimate award altogether. In all this, of course, the defense must be ever mindful of the Edward Bennett Williams Rule of Trials:1* One third of all cases can never be won;* One third of all cases can never be lost;* The battle over the remaining one third makes or breaks a trial lawyer's reputation.II.DISCUSSING "DAMAGES:" A CASE OF FINDING THE RIGHT WORDSWhy is it that defense lawyers don't want to label a recovery as "damages"? Is it because the term "damages" carries the assumption that a wrongful act caused the plaintiffs condition? This dilemma is the same encountered by Kobe Bryant's defense lawyers in the criminal case involving his disputed personal relationship. Recall that in the Bryant case, the defense moved to have the prosecution barred from calling the accuser a "victim" because the term carried an implicit assumption that Bryant did some harm to the complainant, creating a p...See the full content of this document
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