Damage Control

An Evidence-Based System to Reduce Non-Economic Damages

Facts:

• Verdict size has risen significantly in recent years.
• Plaintiffs’ demands to settle cases have risen significantly in recent years.
• The number of settlements paid have risen significantly in recent years.
• Non-economic damages have been the main cause of rising verdicts and settlements.
• Most demands for non-economic damages are not based on evidence.

Conclusions:

• Plaintiffs have gotten much more skillful engaging the emotional “reasoning” of jurors to award significant damages.
• Defendants have done a poor job of developing damages defenses.
• Defendants have exacerbated damage awards by the way they have defended cases in ways that anger jurors.
• Insurers and defense attorneys are more willing to settle cases for higher amounts out of fear, misinformation, and myth rather than evaluating facts, strategy, and skill.
• Plaintiff attorneys – not case merit – are controlling the cost of litigation.

Solution:

• Utilize a systematic approach in discovery and trial preparation to develop tangible anchors for non-economic damages that can be used as a reasonable basis for settlement and trial.

Goal:

• Reduce settlements and verdicts by 20%.

Based on a vast body of research and decades of litigation and trial experiences in thousands of cases, the Decision Analysis Damage Control system is designed to provide counsel and clients with a strategy, plan, and tools to evaluate, settle, or try cases for more reasonable amounts in order to control litigation and trial costs.

Step 1: Damage Driver Determination

We review preliminary case documents to identify the emotional, psychological, and strategic components of the case that will affect the plaintiff, their attorney, and the jury (or judge or mediator) on liability and damages.

Step 2: Case Positioning Assessment

We meet with clients, discuss our preliminary assessment, and obtain information on case posture, risks, attorney and witness profiles, judicial rulings, and client goals for settlement or trial.

Step 3: Restorative Damages Plan

While plaintiff attorneys tend to think of their clients as forever damaged and in a state of constant physical and emotional pain, the Decision Analysis system is based on psychological research and a simple proposition: people can and do recover from traumatic events. By giving plaintiffs identifiable resources and tools to recover from a traumatic incident, the defense can create an alternative damages plan that addresses a plaintiff’s recovery goals and needs.

In a written report and client meetings, we develop deposition approaches and questions for plaintiffs and experts that are oriented toward a positive future. While some of these resources include counseling, physical, occupational, and vocational therapies, it also allows for more creative options based on the plaintiff’s own individual desires and goals such as travel, hobbies, or education. These options would have definitive dollar costs that could be included in the plan. We have developed a set of key deposition questions that encourage plaintiffs to outline concrete resources that will assist them in their recovery.

These questions encourage the plaintiff to think more positively about their future life. It can also significantly reduce plaintiff (and juror) blame and anger aimed at the defense, which drive high dollar demands. The restorative damages plan allows jurors to attribute a sympathetic motive to the defense rather than doubting or minimizing their injuries.

The result of a positive orientation is a healthier, more satisfying future rather than adopting the false notion that the plaintiff is condemned to a life of constant misery. This orientation can also make plaintiffs more receptive to reasonable settlement offers.

Most plaintiff future non-economic claims are purely speculative, which allows them to ask for millions, if not tens of millions of dollars. The Damage Control plan creates actual evidence that can be the basis for mediation positions, expert testimony, and presentation to a jury at trial without compromising liability defenses.  

Using this approach, we have been able to reduce final trial awards against our clients by millions of dollars, relative to pre-trial plaintiff settlement offers. We believe this approach can be used to meaningfully reduce both past and future non-economic damages for nearly any civil defense case.

Contact us for more information:

If you would like us to give a presentation on Damage Control to your organization, get more details on our approach, or would like a free initial case consultation involving a Damage Driver Determination, Case Positioning Assessment, and a meeting on the Restorative Damages Plan, please reach out to us at info@decisionanalysisinc.com.