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Should You Discuss Damages During Opening and Closing?

thinkstockphotos-465858366Whether and how you discuss damages in your opening statement and closing argument is a strategic consideration. A plaintiff discussing damages in the opening may turn jurors off, but not doing so can be a tactical mistake. Defendants usually want to steer clear of damages in the opening if possible. And both sides should discuss damages in the closing, but maybe in a different order.

The considerations on whether to discuss damages in the opening statement are determined by whether you represent the plaintiff or the defendant.

Plaintiff’s opening statement. From the plaintiff’s perspective, the opening is generally spent convincing the jury that there’s liability. A discussion of a claim for substantial damages at this early stage, before the jury is convinced that the plaintiff is right, could be dangerous and might turn the jurors off. On the other hand, if the plaintiff is seeking a large award, the plaintiff may want to sensitize the jurors to that subject by mentioning, at least in passing, that they have a multimillion dollar case before them. Tactically, the plaintiff should make at least some brief argument of damages, discussing some numbers, in the first argument. This will preserve for rebuttal the right to make a fuller argument on the topic.

Defendant’s opening statement. If the plaintiff mentions a large dollar figure in his or her opening, defense counsel may want to do likewise and ridicule the plaintiff’s demands in light of “this miserably wanting case of liability.” But the competing factor for defendant is the psychological axiom that the more often something is repeated, the more believable it is. Repeating the million-dollar figure recited by plaintiff risks having the jury think of the case in those terms.

When it comes to the closing argument, the rules are less conflicting. By the time the case has been presented, both sides likely will know how sympathetic the liability case has been. At this point, an argument of damages is critical. The only difference between sides might be the order in which damages and liability is discussed.

Plaintiff’s closing argument. Most plaintiffs’ counsel believe that plaintiffs should begin their arguments with a discussion of liability and conclude with an analysis of damages. This order will leave the jury discussing not whether, but how much.

Defendant’s closing argument. In general, defendant should start the closing argument with damages and spend the rest of the time on liability. This sequence lets the jury know that the defendant hasn’t conceded the amount of damages and that the primary point is that there’s no liability in the case.

Like all general rules, these are subject to alteration depending on the circumstances. If the liability facts are particularly weak and the plaintiff’s “sympathy quotient” particularly good, then defense counsel may only annoy the jury by lengthy discussion of liability. In such circumstances, a detailed argument on damages is warranted. If, on the other hand, plaintiff is not a sympathetic figure, it may not behoove plaintiff’s counsel to belabor damages.

Want more practical tips on the legal aspects of preparing and presenting statements and arguments? Turn to the expert advice in CEB’s Persuasive Opening Statements and Closing Arguments, chap 2. And check out the authors of this book in CEB’s program Persuasive Opening Statements & Closing Arguments, available On Demand.

Other CEBblog™ posts on opening and closing:

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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