Does a Damages Defense Concede Liability?
We tested whether a damages defense creates the perception that the defense is conceding liability. In experimental studies conducted in the early 80s, we compared groups of mock jurors that get a damages defense against groups that do not get a damages defense. We found no effect on liability verdicts. However, we did find a difference in damage awards. Awards were higher when no damages defense was offered. Further research showed that there are several effective messages that can be offered in voir dire, in the case-in-chief, and in closing argument to avoid the perception that the defense is conceding liability when offering a damages defense. One such message is simply letting jurors know that the attorney has an obligation to respond to every point of evidence put on by the plaintiff, even if the defense attorney feels that the jury will not need that information because the evidence shows that the defendant is not liable. Do Jurors Just “Split the Difference?” In the new era of
