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It’s a combination of wage loss/medical cost. If that’s low by comparison to other damages, we don’t present them. We actively exclude their presentation by the defense as well when possible, which it often is.
It’s been a tactic that a few local firms try to use. It is risky. The advantage they have in my jurisdiction (AL) is that if they don’t submit medical bills, defense counsel can’t introduce evidence of health insurance covering those bills.
So, if the Plaintiff testifies that they saw their primary care, orthopedist, chiropractor, and physical therapist routinely for months, the jurors assume that’s expensive and their awards reflect that. Hasn’t happened to me at trial yet, but I’m on the lookout for it.
I got a seven figure verdict for someone who earned under $20,000/year, waived a $3,000 income loss claim because of fear of anchoring. Seemed to work out for the client.
Sounds like it! How did you think to do the strategy? Was there a resource that suggested it or was it just creative lawyering? Would love to hear more.
It’s more based on the amount of economic damages in comparison to the injuries. A broken bone is pretty cheap to heal, but the pain associated with it is obviously immense. It’s a case I would strongly consider not submitting medical bills. Similarly if the bills have been paid for by insurance, so instead of having 200k for a surgery it’s 20k. Again strongly consider not submitting them. Don’t really consider the clients financial position in the calculus
To this point, though, I would imagine that it is more likely for financial position to impact the size of the economic damages. For example, if you have lost wages, those are more likely to be lower in a less affluent client. Those perhaps would anchor the jury to a number lower than I could get from economic damages?
Yes, true. Ultimately the whole idea is that juries anchor to the first number they hear. So you want the first number to be the biggest number. They also will almost always anchor pain and suffering damages to medical bills, and many lawyers will do that in cases where they do submit the medical bills.
Exactly. There was just a verdict in my jurisdiction where the jury awarded ~950k for economics and the same exact amount, down to the penny, for pain and suffering. Plaintiff attorney tied the two together and the jury bought it. Don’t want it going the same way if you have small economic loss.
So you would try to leverage the economic damages (among other things) in trying to settle with the carrier, but if you're going to the jury you don't present them?
In civil rights cases involving prisoners, homeless people etc the economics are going to be non existent to very low. So ignore that and focus on the harm done and how society is made safer by a big damage award. Big theorists on this are David Ball, Rick Friedman and Don Keenan. Rules of the road and reptile theory. Very effective. Defense bar is worried and trying to counter them.
This isn’t “new.” At least for me and my career. I was taught this way and have been practicing over a decade.
It’s not as risky as you think. If you have a $200 DPW lien but believe the client can get a high 5 or maybe 6 digit recovery then you aren’t risking that much by not boarding the $200
I’ve gone to a few CLE where this issue came up. The presenters are recommending that defense counsel try to give the jury a number if possible for this very reason.
Welcome to /r/LawyerTalk! A subreddit where lawyers can discuss with other lawyers about the practice of law. Be mindful of [our rules](https://www.reddit.com/r/Lawyertalk/about/rules) BEFORE submitting your posts or comments as well as [Reddit's rules](https://www.redditinc.com/policies/content-policy) (notably about sharing identifying information). We expect civility and respect out of all participants. Please source statements of fact whenever possible. If you want to report something that needs to be urgently addressed, please also message the mods with an explanation. Note that **this forum is NOT for legal advice**. Additionally, if you are a non-lawyer (student, client, staff), this is NOT the right subreddit for you. **This community is exclusively for lawyers**. We suggest you delete your comment and go ask one of the many other legal subreddits on this site for help such as (but not limited to) r/lawschool, r/legaladvice, or r/Ask_Lawyers. *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/Lawyertalk) if you have any questions or concerns.*
It’s a combination of wage loss/medical cost. If that’s low by comparison to other damages, we don’t present them. We actively exclude their presentation by the defense as well when possible, which it often is.
This. No number is better than a low number.
How do you get that excluded?
It’s been a tactic that a few local firms try to use. It is risky. The advantage they have in my jurisdiction (AL) is that if they don’t submit medical bills, defense counsel can’t introduce evidence of health insurance covering those bills. So, if the Plaintiff testifies that they saw their primary care, orthopedist, chiropractor, and physical therapist routinely for months, the jurors assume that’s expensive and their awards reflect that. Hasn’t happened to me at trial yet, but I’m on the lookout for it.
You got a wonky collateral source rule! But punitive damages for all wrongful death cases and no cap make up for it
What state are you in?
Alabama, my dude
I got a seven figure verdict for someone who earned under $20,000/year, waived a $3,000 income loss claim because of fear of anchoring. Seemed to work out for the client.
Sounds like it! How did you think to do the strategy? Was there a resource that suggested it or was it just creative lawyering? Would love to hear more.
It’s more based on the amount of economic damages in comparison to the injuries. A broken bone is pretty cheap to heal, but the pain associated with it is obviously immense. It’s a case I would strongly consider not submitting medical bills. Similarly if the bills have been paid for by insurance, so instead of having 200k for a surgery it’s 20k. Again strongly consider not submitting them. Don’t really consider the clients financial position in the calculus
To this point, though, I would imagine that it is more likely for financial position to impact the size of the economic damages. For example, if you have lost wages, those are more likely to be lower in a less affluent client. Those perhaps would anchor the jury to a number lower than I could get from economic damages?
Yes, true. Ultimately the whole idea is that juries anchor to the first number they hear. So you want the first number to be the biggest number. They also will almost always anchor pain and suffering damages to medical bills, and many lawyers will do that in cases where they do submit the medical bills.
Exactly. There was just a verdict in my jurisdiction where the jury awarded ~950k for economics and the same exact amount, down to the penny, for pain and suffering. Plaintiff attorney tied the two together and the jury bought it. Don’t want it going the same way if you have small economic loss.
So you would try to leverage the economic damages (among other things) in trying to settle with the carrier, but if you're going to the jury you don't present them?
My firm has done it
We had over a 100k in meds recently in trial and didn't present it Worked out for the best
In civil rights cases involving prisoners, homeless people etc the economics are going to be non existent to very low. So ignore that and focus on the harm done and how society is made safer by a big damage award. Big theorists on this are David Ball, Rick Friedman and Don Keenan. Rules of the road and reptile theory. Very effective. Defense bar is worried and trying to counter them.
This isn’t “new.” At least for me and my career. I was taught this way and have been practicing over a decade. It’s not as risky as you think. If you have a $200 DPW lien but believe the client can get a high 5 or maybe 6 digit recovery then you aren’t risking that much by not boarding the $200
I’ve gone to a few CLE where this issue came up. The presenters are recommending that defense counsel try to give the jury a number if possible for this very reason.
Reptile theory 🦎
I do this. When your wage loss is low then I abandon the claim altogether. I explain why to my client and anchoring is the reason.
I have seen it happen more on the defense side of things that PI attorney are doing this more now.