Asking a jury for money is the critical juncture in the closing argument of any civil damages case.  It is also extremely difficult for many lawyers.  How can our jury award money damages and give the client the justice they deserve, when we can’t even summon the courage to ask for money?  How do they figure out how much justice to “give” a client when we ourselves don’t know what justice looks like, whether “give” is something a jury can do in the first place, and when we’re frankly messed up in thinking about money from our own lives?

All of these questions are important in every damages case we try.   We all know this – so why is it so difficult?  Why do we read books, watch YouTube videos, and attend seminars in hope that we’ll see some clever turn of a phrase we can copy and mimic that will land perfectly with every jury in every case?

Lawyers, including really good lawyers, inevitably struggle with these questions.  I struggle with these questions in every case.  What is the number?  If I ask for too much the jury will think I’m a greedy lawyer and may punish my client.  If I don’t ask for enough, the jury will be angry at me for that. It’s always a struggle.

I once spent four hours with a juror who had just been part of a 12-person jury who returned a verdict for the defense in a 5-week medical malpractice case.  The trial case was not one of mine – the juror just happened to be a witness for me in another case.  When I found out she was on the panel, I asked her to speak with me.   It was a priceless conversation.

The case was brought against local physicians and a hospital.  After a 5-week trial, the jury reached a verdict in less than 30 minutes.  What turned the jury off?  The ask … frighteningly, after 5 weeks of evidence, it was the plaintiff’s lawyer’s ask that killed the momentum for the plaintiff.  My juror told me that the entire panel was sympathetic to the plaintiff.  They were ready to award money damages.  They weren’t angry at the defendant; they were just feeling empathetic with the plaintiff.  My juror said she was ready to order a verdict to pay some money – and so was everyone else – some money … but how much?  All they needed was a reasonable number – and some direction on what “reasonable” would be. Then closing happened … and then the ask came … and suddenly, it was all over.

In closing, counsel for the plaintiff walked through the entire trial; he revisited all of his expert’s arguments on standard of care violations; he rehashed the realities of damages, past and future; he walked through each jury instruction; he used fancy charts and spreadsheets, and medical exhibits and went on and on and on.  Just when the jury was just about asleep, the judge starting his second Sudoku puzzle of the closing, and opposing counsel’s yellow pad full of mindless doodles, plaintiff’s counsel stopped and looked at the jury and exclaimed, for the first time in the entire trial process, “we want $45 MILLION DOLLARS.”

Full stop. Game over.

Fast forward to deliberation.  There was no argument in the jury room.  Every juror agreed the plaintiff’s attorney was out of his damn mind.   My juror reported that the jury was so offended by the number that they completely lost sight of the previous five weeks’ worth of evidence.  Liability was a toss-up, could have gone either way.  But the shock of hearing that number for the first time in the last few sentences of plaintiff’s counsel’s summation was all the juice the jury needed to find for the defense.

This was pivotal for me.  I asked my juror a series of questions – below is a summary based upon my notes and memory of the conversation:

Q:   Why was it such a shock?

A:   “that was the first time anyone had said anything about what the Plaintiff wanted – we were totally unprepared to hear a number like that.”

Q:  What were you expecting?

A: “maybe a million or even a couple million, but $45 million – that’s insane.”

Q:  Did the attorney not discuss money in jury selection?

A: “no”

Q:  In opening statement?

A: “Nope”

Q:  Any experts testify as to future costs of medical care, etc.?

A: “yes – some – but not millions of dollars. If he was going to ask us for that much money, he should have told us up front so we knew what to expect and could justify why that much was warranted – if at all.”

Q:  Would it have made a difference if he had talked about it in jury selection and opening statement?

A: “I don’t think so – it was too much money.”

Q:  Do you think the other jurors would have felt the same way if the number had been out on the table and discussed from the outset of the case?

A: “I don’t know – but they were all upset about that number.”

Q:  If the attorney had said in jury selection that he intended to ask you to award $45 million at the close of the case how would you have responded?

A: “I would have told him I would not award that much money – ever.”

Q:  Ever?

A: “Well maybe not ever, but I would dang sure need him to show me why the person deserved that much money.”

Q:  So, if you would have known up front, you would have told him that you would likely never award damages that high?

A:   “yes”

Q:  Unless he showed you the case warranted it?

A: “yes”

Q:  Would you have talked openly about it in jury selection had it come up?

A: “Yes – and I think all of the jurors would have.  It was a polarizing issue.”

Q:  Was there anything else about the way it was presented that made you or the other jurors balk?

A: “yeah – when he asked it was clear he wasn’t even sure of it himself – it took him forever to get there, and then when he was finally there, he hesitated like he was uncomfortable, and when he said $45 million it was like he wasn’t sure, like he didn’t even believe it was worth that.”

Q:  So, you were left with the impression by his own discomfort that he didn’t even believe in his own client or case?

A: “exactly!”

I spent a lot of time with, and learned a lot, from this juror.  For me, this conversation reinforced two concepts we teach at Trial Lawyers College: (1) anger drives big verdicts, not empathy or sympathy; and, (2) you can’t wait until your last sentence of a trial to drop a huge number on a jury, without any warning or direction on the what and the why.

I was reminded that we must be comfortable talking with our jury about money.  We have to talk about money — we must at least put the jury on notice of a range of the amount of justice we will ask for at the conclusion of the case.  We must engage the panel in discussing the what and why on our numbers in jury selection so we can vet the issue.  In opening, we must tell the story and set up the call to action with a number or at least a range.  We should talk about the numbers in trial with witnesses where appropriate.  And in final argument, we must SHOW the jury WHY the number we have identified is reasonable under the facts of the case, and provide a template or analogies to help them understand valuation.

This issue has long been recognized by Trial Lawyers College faculty as being one of the most difficult skills to grasp and master for lawyers.  Asking for money, talking about money, even thinking about money in voir dire and opening statement is a source of great anxiety for most lawyers.  In fact – there are lawyers who can’t summon the nerve to make a defining ask in the call-to-action portion of their closing. How is our jury supposed to decide, if the person who is supposed to be their guide through the process can’t even decide?

What can we do to get better at dealing with money?  The answer, as with most things, is “it all begins with you”.  You have to look inside; what is it about asking for money for justice that makes me uncomfortable?  At the Trial Lawyers College we use psychodramatic methods to work thorough these interpersonal issues to discover what our mental and emotional blocks are in respect to discussing money in relation to an award of damages.  We confront the issues, work through the issues, and eventually find some clarity and understanding of the what and the why.  With this clarity comes freedom – freedom to roll in the green, bathe in it, throw it around, talk about it, and share our own struggles with money and awarding money for justice, money for pain and suffering, money, money, money, money – dirty, stinky, greedy – money. We have to talk about money – because money is all we have to make our client whole – money IS justice in our system of justice. Getting to that place where we are comfortable with it starts with us – remember: “It all begins with you.”

I have often wondered how that 5-week medical malpractice case would have ended had that lawyer had exposure to the Trial Lawyers College methods and psychodrama before he tried that case.  I suspect my juror would have had a completely different perspective at the close of the case.  I would bet that jury would have awarded the plaintiffs substantial justice in that case.

Trial Lawyers College has created a six-day course to focus on asking for money damages in trial.  The course is designed to help individual lawyers address their personal anxiety about “asking for the money” from juries at trial, as well as to the criminal defense lawyer’s need to address money with jurors in financial crimes cases.  With some of TLC’s most innovative minds shaping the curriculum, we will spend the first days in psychodrama focused on our honest personal experiences with money, in our childhood and today.  Only when we honestly confront our anxieties about money – when we’ve had it, when we haven’t, and how we feel about ourselves in relationship to money – can we effectively reverse roles with others in the courtroom and their relationship to money.  We cannot begin to understand jurors’ response to our “ask” until we first understand our own feeling about that “ask” … so let’s get to work, together.

To my knowledge, this is the first course of this kind offered anywhere in the country.  To have it right here in Washington in a beautiful setting on Icicle Creek in the Cascade Range is an amazing opportunity.  There isn’t a plaintiff’s lawyer in the region who would not benefit from this course.  Anyone who tries cases, or wants to try cases, should attend this course. Register now at https://triallawyerscollege.org/course-listing/the-courage-to-ask-the-psychodrama-of-money-and-freedom-in-the-courtroom/