Excerpt from Chapter 11: Economic Damages at Trial
Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys
by Michael L. Brookshire and Stan V. Smith
The plaintiff’s attorneys generally state that the liability side of the case will be more important than the damages side as a consideration in jury selection.
This might be reversed, for example, when the liability seems to be clear and very large economic damages are to be advanced.
At any rate, plaintiffs’ attorneys do consider the proof of damages as a jury is selected.
A common approach is to choose one or a few jurors who will lead the others toward a verdict on damages and, in leading, will not be afraid to think in terms of high losses, if these have been established.
Given the search for “leaders,” what kind of juror does the plaintiff’s attorney seek or avoid — as either a leader or follower?
There seems to be some consensus among trail lawyers on the plaintiff’s side about “types” of persons to be sought or avoided.
As a general rule, jurors are sought who can understand, at least to some extent, economic estimates and testimony.
Yet, some high-education-level and also high-income persons are avoided, because it is thought that they will tend to be very conservative and not award large sums for the lost earning power, especially of hourly wage earners.
More specifically, plaintiffs’ attorneys tend to favor blue-collar workers who “get their hands dirty” and know what happens to earning capacity when a person is injured. Union members are also looked upon favorably. Bankers, accountants, engineers, scientists, and high-income persons, in general, may be avoided.
It is less certain what type of juror would be most sympathetic to hedonic damages estimates of the lost pleasure of living; very little experience exists as a guide.
Women who are mothers, grandmothers, and/or wives may be more responsive to claims for the lost pleasure of life and the loss of society and companionship, especially if the victim was married or was a child.
Perhaps prospective jurors thought to be conservative in their outlook would also respond cautiously to less direct measures of damages.
Finally, potential jurors may be asked if they would hesitate to award $750,000 — or whatever is the “bottom line” of the economist — if the facts led to this amount as the true economic loss.
They might be asked if they believe that lost household services are a loss to the family and if they know that persons are commonly hired to perform household services.
They might be asked if they believe that a human life has a value beyond its value as a mere economic machine, both in the world of work and in the services provided for a family.
Defense attorneys, as might be expected, tend to favor those types of potential jurors which plaintiffs’ attorneys avoid. They feel that those in “conservative” occupations and perhaps high-income persons in general will tend to resist very high awards.
Some defense attorneys also state that they lean toward jurors over age 50, under the assumption that older persons are more conservative.
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Read additional sections from Chapter 11 of The Practice Book for Plaintiff and Defense Attorneys: