Defense Strategies for Minimizing Plaintiffs’ Damages and Plaintiffs’ Verdicts

The best way for the defendant to keep down the damages is to win on the issue of liability. However, in many cases defense counsel may believe that there is a greater than 50% chance that the plaintiff will win. In some cases, the defendant is clearly at fault, and may be egregiously at fault. In all of these circumstances, a primary goal of defense counsel is to minimize the potential damages that a jury may award to the plaintiff at trial.

In those cases where liability is not clear, part of the strategy of keeping damages down is to present a very good defense on the issue of liability. Even if there is an eventual plaintiff’s verdict, disputed liability will probably keep the damages down. This can be in a direct fashion such as reduction of the verdict based on plaintiff’s comparative fault; or on a jury psychology level. Jurors, who really aren’t sure about defendant’s fault, are less likely to follow the recommendations of plaintiff’s counsel in closing argument to award an amount that is extremely generous to the plaintiff. Doubts about liability can also be a factor in jury room debates, where eventually nine jurors need to agree to the same verdict and the same amount of damages.

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