Ronald V. Miller, Jr., at the Maryland Injury Lawyer Blog, on the ball as always:
David Davis, a Massachusetts based jury consultant, offers five thoughts in The Jury Expert on the psychology of how jurors process requests for damage awards that I think is of interest to accident and malpractice lawyers.
I found of particular interest his theory that consumers – and by implication jurors – have a propensity to judge precise amounts of money to be lower in magnitude than similar round prices. The reason is that we tend to use precise numbers for small amounts and round numbers for larger amounts. The example Dr. Davis provides is that a precise number like $325,425 is seen as lower that $325,000 even though obviously the former number is a higher amount.
The implication for personal injury lawyers is obvious: make a request for damages that is a specific amount and back up that amount with some logical foundation. …
This advice corresponds with the general principle of negotiation that you should start with the highest number that you can reasonably and fairly demand. Of course, when you define "reasonable" and "fair" in such situations, you do so in a way most beneficial to you and your client — the core point is to have a rational basis for your numbers, a basis others will at least consider and not reject out of hand.
There are very few situations in which $500,000 is the "rational" number, even in the context of pain and suffering, which obviously does not have a specific dollar amount. Even if the jury, at the end of the day, will likely compromise on some round number, their decision will be much easier to make if they can build a number from rational, reasonable and fair components.
Those components include, as Ronald Miller writes, per diem amounts. I am fond of including interest and attorneys fees and the like.
Of course, the Maryland injury lawyer is in a completely different situation from me, a Pennsylvania injury lawyer, as Pennsylvania does not allow lawyers to suggest exact numbers to the jury. They can, however, present evidence that includes exact numbers, such as expert analyses of lost wages and fringe benefits, and medical bills. Further, you can of course use whatever numbers you want into settlement demands; there’s no reason to keep your persuasive tools on lockdown until trial.
Keep that in mind the next time you write $X,000,000 or $X00,000 as your demand.