Trial Magazine

Low medical costs tug down economic damages verdicts. This “tug number” effect is why we’ve taught lawyers not to claim medicals that are low compared to the total verdict you want. A low number—the tug number—creates an unconscious, powerful mental force that drags other numbers down toward itself.¹

In the same way, high tug numbers tug up, as long as it’s higher than but in the range of the verdict you want. For example, a good tug number for a $100,000 verdict would be the 125,000 times per year this kind of danger injures people. For a $1 million dollar verdict, transform that 125,000 injuries per year into 1.25 million per decade. Good use of tug numbers ensures that jurors fully grasp your client’s injuries and award damages accordingly.

A tug number does need not to be a dollar figure.² For example, saying, “There are 50,000 bricks in the walls of this ­courthouse” tugs down a potential $5 million verdict—even though bricks are unrelated to dollars. Six million bricks, however, tugs it up. Tug numbers work even when you know one is being used on you! It’s a mental shortcut firmly evolved into our brains.

Use danger numbers. The best verdict tug numbers are about a danger or harm related to the case: number of wrecks, injuries, deaths, or lost working hours due to the defendant’s misconduct, such as violating a safety rule. Non-danger numbers also tug, but they lack other important benefits—such as Reptilian danger tentacles and preventing defense tug numbers from tugging against you. A trucking company’s $50 million annual income tugs up, but not as well as its danger-implying 5 million annual highway miles.

If the defense objects to your tug number, be prepared to show it’s probative. For example, “Hospital negligence kills more than half a million people annually” goes to ­foreseeability. It also goes to noneconomic damages when, given what happened, it’s a number that scares your client ­whenever she needs medical care.

When to use tug numbers. In voir dire or early in opening, introduce your high tug number for damages. A low tug number—for something like comparative negligence—goes in closing. Using a dollar number as a tug in the early part of an opening comes across as advocacy, which you must avoid. For example, in early opening you can use: “Ajax Corporation’s trucks drive more than one million miles a year through Missouri.”³ But you can use the dollar number at the end of your opening or as part of a non-advocacy voir dire question.

Comparative negligence. You can lower your client’s comparative fault apportionment with a low tug number. Make your client’s tug percentage as low as you reasonably can, and give a specific figure for each defendant’s fault.

For example, in closing: “If you all agree John was at fault, say by 5 or 10 percent, write that number on this line.” Five and 10 are too far out of your damages range to drag them down but likely will hold down your client’s fault apportionment. Do not use zero—it is not a tug number. So, “Even if Ajax Corporation was only 1 percent at fault, you write ‘yes’ on this line” is helpful, but “John was not at fault” is not.

When you need at least 1 percent fault apportioned to a defendant, don’t say, “Any number makes them liable.” Like zero, “any” is not a tug number. Instead say, “Even as low as 1 percent, much less the 50 percent it ought to be” because 1 percent tugs.

Finding tug numbers. Think about any kind of number that relates to the kind of danger in your case. How many ­lawnmowers are sold per year? How many emergency room visits are there? How many parking lot assaults? Government and industry regulatory groups, lobbying groups, and safety organizations are potential sources. Any number you can find support for that relates to danger is fair game.

Can the defense untug your tug number? Sure. But you get to give yours first, so the defense number has far less effect. And when your tug number concerns danger, jurors’ brains are far more likely to use your higher tug number.

David Ball and Artemis Malekpour are jury consultants with Malekpour & Ball Litigation Strategy in Durham, N.C. and Chapel Hill, N.C. They can be reached at ball@nc.rr.com and artemis@consultmmb.com.

Notes

1. David Ball, David Ball on Damages 3 219 (3d ed. 2012). To omit low medicals, get your client’s written permission, and clear it with other claims on the verdict.
2. See, e.g., Daniel Kahneman, Thinking, Fast and Slow 119 (2011).
3. For a template, see Part IIIb in Chapter 5 of David Ball on Damages 3.