Most jurors haven't decided how they feel about giving millions for pain and suffering until the trial's nearly over — so how do you spot the ones who never will? In this deep dive, hosts Harry Plotkin and Dan Kramer unpack the "Health Is Wealth" question sequence Harry uses to surface which jurors value non-economic damages. They dig into the counterintuitive power of telling jurors the money isn't meant to help, how to read jurors who dodge or push back on open-ended questions, and the tricky calculus of brain-injury cases and waiving future care. Tune in for a practical playbook on making quality of life feel like real wealth to a jury.

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All right, welcome back to another episode of Picking Justice. And it's just us today, Harry. We decided we've had some good episodes in the past, just you and I kind of talking, doing some deep dives, and that's what we decided to do here. We have some wonderful guests coming up, but we really want to do a deep dive on damages and health as well and how we talk about damages. But before we get there, Harry, it was great to be back in the courtroom with you again. We just finished trial a couple weeks ago. Yeah, it was great. It was good.

You did great. And it was the last time that we filmed one of these together, just the two of us. I think it was on doing a voir dire in a tiny amount of time, which was relevant for there because you were -

I should have listened to that episode before that trial.

Yeah, I know. It was just one of those many judges, seems like we have more and more every day in California and some other states that just tie your arm in a half behind your back and just give you either no time. In this case, it was almost no time, but also no cause. There were a few people that were clear cause and the judge was just like, "No." Remember at the end of all the questioning, he just kind of asked him, "Anyone here can't be fair? No hands up? Okay."

He did at the beginning too.

Yeah. But the last one, he just thought, and he didn't talk to those people.

No.

But he was like, "They said they could be fair." I was sitting there thinking they didn't actually say anything. They just didn't raise their hand when you asked them a question. It's tough. I mean, do you feel like it's getting tougher with a lot of judges? Not every judge. Some judges are great and they understand that jury selection is the most important part and that you got to err on the side of caution when getting rid of biased jurors. But I feel like there's more and more judges that are.

Yeah. I mean, it's funny because in California, obviously, as you know, that new law came out a couple years ago or last year about they can't set arbitrary time limits. But with this judge, he literally told us at the FSC that we have an hour for all the -

Total. For multiple rounds of jury selection. Yeah.

Yeah, which was really tough because there was multiple defendants and all that. But I called him on that. He like, oh, I didn't say it was arbitrary. I said I looked at these facts. I was like, I could probably pull every one of his FSC transcripts and I guarantee you it's always an hour. It doesn't matter if it's a crazy complex case or a simple rear-ender, he's always going to give an hour. Anyway, so we do have another episode. We're not going to talk about the time limits, but that is tough obviously to deal with. We've talked about that at length, and I think the last one you and I did together was dealing directly with that, which was helpful. But today I want to talk about something you can't really get deep into if you don't have a lot of time. But really when Harry and I were talking about a topic, we were really thinking the health is wealth and how you introduce that concept to get deep into the non-economic damages.

And some unique ways I think that we've been seeing even on this podcast and the way you and I have both adjusted, at least the cases we've worked on and how you're seeing it. So Harry, are you introducing the "health is wealth" phrase early on?

For sure. I'll say that people ask a lot about how much do you talk about damages in jury selection and should that be. Some philosophies are like you talk about it more than anything else. And I don't necessarily agree with that. There's only so much you can talk about damages I think in jury before the jury is kind of thinking why is he talking about money so much? But I do think that few years I've been thinking about how do we find a way to figure out which jurors are going to be receptive at the end of your trial to damages, non-economic damages. Because if you ask them upfront just about damages, and Dan, we've seen it a million times, how do you feel about money for pain and suffering? And most jurors haven't thought about it and sometimes they just give you an answer that's not probably really their true feeling about it because it's not what they would feel at the end of the trial when you've really explained it and they've seen a plaintiff and you've given your closing and you've talked about all those things.

And then some of those jurors who may at the beginning of the trial have been like, I don't know about. How could millions for pain? It's more than they would've made in their lifetime and it's not going to help anybody. And that seems like you're just getting rich. But some of those jurors right at the end of the trial are like, I totally get it now and I want to give a lot of money for non-economic damages. So how do you figure out at the beginning of the trial before they thought about it, how they're going to feel at the end? That's the big challenge.

Well, I'll tell you from those most recent trial, the lesson I learned is that if a juror sneezes while your plaintiff is on the stand, always have your plaintiff say, "God bless you" or "Gesundheit" because I know this does not answer your question, this is definitely a tangent, but there was a juror, our best juror that she was the woman that basically. It was a trip and fall case, tough liability, but we did well. And she basically said that "I've fallen, but I would never sue, but I'm okay if someone else sues." So we were a little concerned about that answer, but ultimately I think she ended up being our best juror by far, Harry. But she did say what really stood out to your client was when I sneezed and she said, "God bless you" in the middle of her testimony. I said, man, that is just an incredible person right there.

So anyway, that does not answer your question, but —

Wow, that happened more than once?

Yeah, she was sick. She was really sick. I mean, yeah, it's the thing that I struggle with the most, but it's often. And I think the reason, to go to your point, the reason why it is so hard, especially to identify the ones that are bad is because like you said, we've had so many jurors who initially are dubious about awarding money for pain and suffering. And when you hear millions of dollars, especially when you don't have your client there, they can't see anything yet, they're a little skeptical. And then usually you're like, oh, that person's just going to be bad for us, but isn't always the case. That's why it's the hardest thing to read. That's why I want this discussion to figure out what are the key phrases, the key sentences, the key questions to ask to really get the deep down feelings out, to find out if someone is truly just a tort reformer or just is not, or a closeted tort reformer, doesn't even realize they are, but they just don't believe in money for pain and suffering.

Because if you ask it that directly, I don't know if you're going to necessarily get the best information.

No, I mean that's what I found is if you ask directly, how do you feel about, you get a bunch of answers that aren't very reliable because they haven't thought about it. So what I've been done the last several years is I've had lawyers, you got to explain it. You got to explain non-economic damages quickly, but in the best light that you can so that the jurors who get it are like, oh, like you're saying, you explain it to them, you say things like it's the only way to hold a defendant fully accountable for the harm that they've caused. And also when someone's life has been changed and the quality of life has been damaged or destroyed, I mean, even though money's not going to help them because some jurors will get confused and be like, oh, they need a lot of money for therapy and for physical therapy and things like that.

And you're like, well, it's not economic damages. That's different. This doesn't do anything but compensate to do this long talk and sometimes the judge might shut you down. So that works too if you're able to explain it quickly and a judge doesn't get mad. But the way that I found the shortcut that I want to talk about is the health is wealth thing because I think that you're explaining it, but you're also asking about a concept that I think the good jurors strongly believe in these days. And it's like a three-part question that I have lawyers ask now, and you have to do all three because if you only ask the first and second, you actually don't learn which jurors are going to be good for you. The first one though, you get started is saying, how many of you heard of the saying health as well?

And what does that saying mean to you? And you get a lot of great answers from jurors. They're like, it's the only thing we have. I mean, you can't enjoy life without your health and life's not worth living unless you can spend with your family or do the things that you want. You hear all these great things. I'm just trying to think. I mean, occasionally there'll be a juror who already you lose because they hate it. They're like, what does that mean? I don't agree with that. Life is suffering kind of thing. But you get great answers. And I'm sure the defense doesn't like what they're hearing too, which is a little bonus because they're forming a little bit of a tribe mentality because most jurors think, yeah, health is wealth. And then the second part though, that doesn't necessarily tell you what jurors are actually going to give you money for quality of life and health.

The second part, which it's not primarily to precondition the jury, although maybe it does a little bit, but you're really trying to find out who doesn't agree with it. But I have them ask, now, do you think a healthy, happy person who's, let's say, doesn't make a lot of money or makes an hourly paycheck or doesn't have a huge savings, do you feel like they're any less wealthy in their life than let's say a CEO or rich person who may have chronic pain or disabilities or in a wrongful death case who's lost a loved one or whatever it is they're facing here? And that's the one that gets them really thinking. And the good ones are like, you see them thinking about it and they're like, yeah, I mean that makes sense. I'd rather be healthy and do the things I love doing than be rich and unhappy and hurting or have chronic pain, things like that.

So how bad do you have to make the suffering of the rich person though? To what degree? I

Don't think you have to be super specific, but just throw it in there, just that concept of, are they any less wealthy in a sense because we just talked about, and they know what you mean because you just said health is wealth. Are they less wealthy in that sense, generic philosophical sense than a CEO, a rich person who, if your person has chronic pain who has chronic pain or who has disabilities or who. And again, you'll start to maybe lose the jurors who kind of go, I don't think that's necessarily true, but a lot of them will agree with it. But mostly that gets them thinking like, yeah, I guess that kind of makes sense, right? The third part, now if you stop there though, you haven't necessarily learned which of those people who are kind of with you are actually going to then take that final step and actually give you money because they can still say, I agree, nothing is more priceless than.

And they'll use that term like, oh, it's priceless. But some people say priceless means I can't put a price on it and why would you put a price on it? And some people will make that leap. The third part that you really have to then ask to make this all worthwhile is to say, how do you feel about the idea that a person's health and quality of life is a form of wealth that could be worth just as much as a CEO or a wealthy person's actual bank account? I guess my idea for this kind of came from, remember the scene in It's a Wonderful Life when Jimmy Stewart's brother says he toasts him and he's like the wealthiest guy in town, whatever.

Bedford Falls.

Bedford Falls. Yeah. And just that concept that he doesn't have a lot of money. Didn't they lose all their money or something in the savings and loan or whatever? Yeah.

Well, his uncle lost it all, displaced it, then Potter got it, and then the town rallied around him.

Yeah. In the movie you've learned that's real wealth, right? But you have to get them to connect the two of health is wealth, family is wealth. If it's a wrongful death case and they've lost someone, family is wealth. And do you agree or disagree with us that those things, that is a form of wealth that allows you to say, I don't know if you necessarily want to. You can say this in jury selection or maybe not, or maybe you just say it in opening or closing, you just say, Mr. Munguia, I'm going to use an example of one of our plaintiffs in the past, that you are nominated for an award for, by the way, which is awesome, for a trial lawyer of the year word to come out. But he was an hourly guy, he wasn't a rich guy. But before that accident, he was a millionaire because he was healthy, he could do the things he loved.

He had millions of dollars worth of quality of life that was taken fm. He lost millions of dollars. But these questions are designed to get jurors slowly to think about and agree that quality of life, you're rich when you have those things, and if those are taken, you've lost money. But that last question is, how do you feel about that idea that is a form of wealth? And some jurors will say, I think they may disagree with you or they may agree with you, but that's the question where I think you can really figure out who's all along these three steps. I'm getting you, I'm hearing you, you're right. Versus you lost me there. I don't think so. I don't think that's a form of wealth. It's different. It's philosophical. Yeah.

Yeah. So kind of play that out for us. Who are the bad jurors or what are some of the answers there where you're like, I'm suspicious of this juror?

Well, apart from the obvious ones where they tell you, I don't agree with you, and I've heard plenty of that, that's not a form of wealth. People who kind of struggle with it and people who, just like all my best questions, the ones who say, "That's a weird question. I don't understand. What does that mean? What do you mean by wealth? And what do you mean by health? And what do you mean?" They say these weird things and that's too vague. And so that's one that you hear when they're pushing back. But anything where they're pushing back, anytime when you feel like they're just, "I'm just not getting it. I'm not agreeing with what you're saying."

But how would you want the attorney to explain it and to try to get them to understand it? Or is it just kind of be like, "Well, I'll just throw it back at them. I mean, what do you think is wealth means?" How would you want the attorney to handle that where the person's like, "I don't get it. I think that's a weird premise." I'm sure you get a lot of that.

That's enough for me to know if I'm listening, this person doesn't see health and quality of life as wealth that should be compensated as well. But if someone's really pushing back, I mean, probably the best question is try to get them for cause at that point and try to say, "Well, I see that you're struggling with it and I'm wondering, would you struggle if we're asking you to put a value on someone's quality of life and compensate them for a lot of money, a significant amount? You can save millions if you want."You're thinking the money's not going to bring back the quality of life. It's not going to help. Would you struggle with that too and try to get them for cause? I mean, some you'll get for cause and some you won't, but at least I feel like I know, not only do I know the people who were disagreeing with it, I also know the people who were.

It's almost always been the case, the people who are on board with all three steps of it are pretty good and you get a good feeling if you get a lot of those people. Sometimes in some venues you get a lot of those people on the jury, too many for the defense to somehow strike. And it's not like they've said anything for the defense to get them for cause like, "Oh, do you think that you were biased toward the plaintiff because you agree that non-economic damages or the quality of life is valuable?"

I mean, is that kind of how you would start the whole non-economic damages conversation?

I do like starting it that way. Yeah, because that kind of explains. I think it gets them thinking about it in the terms that most lawyers are going to eventually frame the case and explain it in terms of damages. And then from there, you can then talk about, then you can get into, well, I mean, here's what the law says, and do you disagree with giving money for pain and suffering and things like quality of life? But then when you ask them at that point, they kind of get what you've said, why. They understand that, oh no, I mean, no, health is wealth. I've had jurors saying that like, oh no, I agree with that. Health is wealth, so no, that wouldn't be a problem for me, and things like that.

I like that a lot. I mean, I don't think I've ever done that yet in trial, but I like it a lot too because it - When

You get more than 30 minutes with 18 people, we'll do it.

Yeah. I mean, but I do like comparing the CEO, especially. It's interesting how you don't want to make them paralyzed or something terrible. It's like a CEO dealing with chronic pain every day. I like how you do it to almost your real facts, right? The CEO's dealing with what your client —

I wouldn't be super specific so that the judge is going, wait a minute, now you're using analogy. I would keep it general, just like a rich person, like a CEO who doesn't have a good quality of life because they've got injuries or medical issues. Just that idea that gosh, you'd rather be that person. They may have $100 million, but they're less wealthy than this other guy who's healthy and he's got his family and he gets to live his life how he wants. I don't think many people would trade with that CEO.

And then if they do say, yeah, I'd rather have $100 million and be in pain, then it's not who you want.

Yeah, exactly.

No, I like that. I like that a lot. And then I guess, so the best jurors agree with all three.

Yeah, no, I think it works well. I mean, not every judge is probably going to like it, but then again -

Well, what's objectionable about it though? I mean, I don't

Know. I mean, they could say preconditioning, but sometimes I've seen judges shut down questioning on their own for preconditioning that was not in the least way preconditioning. They'll just say, I mean, that's a buzzword that I think a lot of defense lawyers and judges will say when they just don't like a question, preconditioning. I've had them shut down ones where we're essentially asking defense stuff. Does anyone here agree that people exaggerate and ask for too much? And the defense will be like, "Objection, preconditioning." And you're like, "For you? I don't understand what you're even saying." But they'll say it and some judges will shut you down. But

I mean, I've seen judges, there's not a single question that is bulletproof that you'll never find a judge that won't shut down. I've seen judges stop you from asking hobbies. I've seen judges stop you from asking. I know one judge that won't let you ask, "Can you not be fair?" Because he does a little thing at the beginning. So I can't guarantee that your judge is not going to say, "I feel like you're preconditioning or doing something wrong if you ask these questions." But most, I mean, I would say it's been very rare that I've seen them have an issue with it. But know your judge, obviously.

You can always pivot. I mean, I think you could get out the health as wealth question. Start that conversation. And then I'm sure some of the jurors would probably lead you. I mean, I got to imagine some jurors would be thinking, and you probably would get a lot of those answers. You could be the richest person in the world, but if you're not healthy, then I bet jurors will give you that a lot of times, then you can feed that back. But even if the judge shuts that down, it's like, does anyone think that health is the most important thing we have, the most important asset we have? Those kinds of questions that you ask, is there anything more valuable than being able to function and be independent and pain-free and all that? And then it's kind of a backdoor way. I mean, I can't imagine a judge shutting that stuff down.

I hope, but you never know.

But you could ask, yeah, has anyone here disagree that if health has been taken from someone, that wealth has been taken from someone? It's the same thing. And your job as a jury is to balance the two with money. And that's why, I mean, sometimes people say, what does money have to do with things that are priceless? But health as well says it all. That's why we use wealth to compensate for health.

Yeah, I do imagine you're going to get some jurors who are just like, "Well, with wealth, you can probably get better care, better doctors. "So if you get that answer, you say, well, how would you handle that? Because I imagine that some jurors are going to be like.

Yeah, I get that a lot. Yeah. I mean, I always want the lawyer to say, "Well, I appreciate that, but you're talking now about economic damages to help. You're thinking about ways to help at least somewhat minimize their suffering or restore a little bit of their quality of life. And that's great. But what we're talking about is" — an example I always give is, if there was a surgery for $100,000 that would completely cure this plaintiff, that's all we'd be asking for in this case. $100,000, not a penny more, and he's fine again. But unfortunately, all the medical care in the world, you could give them millions of. It's not going to make a difference at this point. Doctors said, "There's nothing more we can do. It's never going to get better." And so the law says that person's lost something. They've lost a heck of a lot.

And that's what non-economic damages are for. This is for compensating for someone for harm that can never going to go away. That'll hit some jurors like, "Oh gosh, it'll never go away. That's terrible. I get it." And some jurors will be like, "Well, life is suffering, who cares if everybody suffers." But I always feel uncomfortable leaving a juror who has said, "No, I mean, I'd give a lot of money because they're going to need a lot of things" because it's never going to be. If you have a really righteous case and you're going to be asking for $10 million or $12 million or more or something, or even $3 million, those economics are not going to add up. They're thinking about, but what's the cost of therapy and what's the cost of some surgeries and what's the cost of, I don't know, wheelchair ramp or whatever?

I mean, that's going to pale in comparison to the biggest life care plan. I mean, I guess they're telling you, I'm open to a big life care plan, but that's about it.

Well, that's an interesting discussion, is that jurors that are willing to give answers that they're willing to give the best care, you think those could be not great jurors on non-economic? I know there's no bright line rule there, but that's interesting.

Probably not always. I never like a juror that even when you're talking about non-economics, their brain just goes to. When their brain only goes there and they talk about things like income a lot, well, I mean, he would need to. I think he should get paid back if he can't work, but their whole thinking is they can only wrap their minds around what will help as opposed to nothing's going to help this guy. I just worry that most of them, 80% of them or 90% of them can't get over that. And the other jurors are like, this should be $20 million. And they're going, why? It's not going to do anything. Over here, I'm trying to help this guy and we're calculating services and things like that. But if their minds are just constantly going back to that, I feel like there's a reason why and it's because they don't see.

But I would ask them, I would say, how do you feel about this other category where you're giving money to compensate them for things that are not going to help at all? And I mean, especially, I mean, if you have a defense lawyer who's doing the Bob Tyson Nuclear Verdicts philosophy where they're saying, give this plaintiff a $100,000 and here's why, here's what they would do with it. Even though that's totally contrary to the law, non-economic damages are not supposed to be giving him something that. This pay for a surfing trip every year for the next 40 years or whatever. That's what he teaches in there of show them, look at how much they could do with this and this would make them happy, but that's not the point.

I do like when you use the phrase or the attorney uses the phrase, this is not going to help. This is not supposed to be money that helps at all. Because I think jurors would initially be like, "Well, what are you talking about? It's like millions of dollars. Of course it's going to help him." But I think saying literally, "This is not going to help. This is not supposed to help."

Yeah, it won't fix his quality of life. Yeah.

The law says that this money that you award in the many millions dollars is not supposed to help. That's not what you're doing. That's not your job.

It's because he's in a situation, a terrible situation where nothing is going to ever fix this pain and nothing is ever going to. I mean, that's horrible. And the law says that's worth something.

But you've always had me say it's not money that goes to anything, but I almost think it's a step further by saying this actually money is not even supposed to help. It's not like, right?

Right.

Because then I think that's where you're going to get the schism between the people who are probably going to be good on economic damages or award your full life care plan. But then I feel like that's almost like the engineer mind, and this is not saying engineers are not always bad jurors, but it's kind of like, well, you have a problem, here's a solution, problem, solution, problem, solution. And when you're talking the non-economic damages that it literally does not help. It's not supposed to help. The law says it's not supposed to help.

The only thing it helps is by holding defendants fully accountable. Again, I love that. I'll say that term as much as I can. And I've had lawyers say this before, especially if a juror was really not getting it or against it, especially in a case where there are no economic damages where you just say, on the other hand, if the jury says, well, nothing's going to help, so shouldn't give them anything, then the defendant hasn't been held fully accountable for. And sometimes jurors like, oh, they get that. So throwing that in there is also. I mean, that also motivates jurors and they understand why. But you're right. Yeah. If people who are just trying to. Those pragmatists who are only trying to, how can we help them? Probably a lot of these cases, probably people don't necessarily have a life care plan.

I know. Sometimes even in my recent trials, I feel like I probably could have waived it. I don't know. I mean, really, it just depends, but it does kind of make it more of the let's help calculation and then they tie. I mean, that's just the age old, do you waive economic damages or not completely? Such a tough one because they do, especially if there's any fluff to it, they're going to scrutinize. And then the next question is probably going to be your non-economic damages. And you just think about jurors' mindsets when they're trying to decide what to award and they felt there's been overreach in any part of the life care plan. If that's been the discussion, if some stuff sounded just outrageous or even just inflated slightly, then it's going to be like, well, that means the next question we have to answer is going to be inflated.

I also worry that sometimes when they give money for a life care plan, especially if it's a lot, they kind of get this feeling like, well, this will fix the non-economic side of it. And even though the reality is this is only going to fix 5% of their suffering or whatever it is, a little bit, but not much. I mean, it's going to keep it from getting much, much worse, but it doesn't fill that hole. But I feel like they feel like, okay, we've reduced the future suffering because we've paid for all these things. What more can we do? But it's tough. I mean, philosophically, it's things you should be getting every dollar for your client. I mean, they have economic and non-economic losses. But the reality is I think that most lawyers have seen, I'm sure some watching will disagree with us, but you do get lower non-economic damages when you ask for economic damages for the most part.

Yeah, I know. It's like there's no right answer. I mean, it's tough. I mean, that last trial that we just did together, it was a good verdict, close to $4 million. But they did scrutinize the economic damages and almost looking back, I mean, I feel like we tried a really clean case, but her treaters did say, "There's not much more we can do for her. She's going to live in chronic pain the rest of her life." To me, looking back, I almost should have just stuck that landing. And then I think the future life care plan, the number was stipulated to. The defense disagreed with the treatment. It's like $692,000, which I cut down from a million or something just to make it even more reasonable. But the power in that one testimony from her treater may have been stronger: "We're not even going to ask for future care because there's nothing that can help her."

I mean, that's probably more powerful because they did cut even down my. They gave us good for non-economic, but they did cut down, I felt like, the life care plan. And I wonder if that would've increased the non-economic damage. I don't know. So who knows? We'll never know.

It's true. And one thing that kind of helps, I think, if you're trying to get both is that I've learned from watching Nick Rowley is, and most lawyers don't say this, I don't know, some maybe more do than I think, but he'll tell them when he's asking for money, even in the opening, he'll say the life care plan and medical expenses, he'll be like, "None of this goes to the plaintiff, by the way. This is all money to compensate. This money goes to the good folks who are helping treat them. This plaintiff doesn't get any of this money. This is to compensate those people for taking care of him as much as they can." Because I think most jurors, I think if you ask them otherwise after a case, they'll be like, "We gave him $5 million." And you're like, "Did you give him $5 million?" No, you helped him pay his bills, medical bills, but you paid some doctors, which there's nothing wrong with that, but you didn't pay him.

Non-economic damages are the only thing that they really get.

Right. I think that has to be seared in their brains that this literally just going to go to doctors the rest of her life. And anything that you don't award that treatment she's going to need, that's going to —

She's still going to pay it.

She's still going to pay it, right.

Just how much is coming out of her pocket versus.

Yeah, that's always tough. I mean, I almost always wave past economic damages, but the future, it's a little tougher because I mean, on the flip side though, I think there's the argument that if you do establish a lifetime of care, that's a lifetime. I mean, it's just maintenance care or anything to make her or him feel better the rest of their life. Lifetime treatment, people are going to be like, "That really does suck. That means it is real."

If it's significant, if they really need it in significant future care, then yeah, I think you have to ask for it. I don't think you deny them that because you didn't want to ask for it, but don't you wish. I kind of wish in a perfect world you could bifurcate and have the judge. We're going to have the judge decide economics and the jury work out economic damages.

Yeah, no, exactly. That would be great. If you could waive the economic damages for the jury trial and have a bench trial on —

Yeah, and the judge is like, "Well, technically..." Because it really is a technical thing, right? Judges are like, "Technically, that doesn't preclude them."

Yeah, yeah. It's just like a spreadsheet, and is it reasonable? All that.

But judges, I mean, one thing I find interesting talking about is judges that will shut you down on lots of things, especially with damages, talking about numbers, talking about millions of dollars, talking about anything to do with your client. I mean, it's really quick though, but I've always found that there's always a way if you push through it. It's just so funny, in the last several trials, I've had a lot of judges who just shut down certain questioning. And we found during a break or during lunch, we found a way to phrase and basically ask the same exact question, and the judge was okay with it. But it's so hard to do on the fly when you have a judge upset at you and shutting you down.

Oh, a hundred percent. I want to do some more case specific in terms of the damages, like TBI where the person was maybe not. They were definitely not Rhodes Scholars or a physical job, for example, and the brain injury, and then they just kind of deteriorate from there due to the brain injury, but it wasn't like they had to use their brain for their job that much. It was a blue collar physical worker. How would you address that to get the jury to understand it's still a major loss for the brain injury?

You mean how in jury selection or how in trial?

In jury selection, yeah. I mean, do you address brain injuries a little different in non-economic damages than you do other physical limitations?

I do, yeah. Yeah. I mean, one thing that I like to ask in brain injury cases, unless it's really obvious, and it rarely is, I've had a couple clients who were. It's very, very obvious they have a severe brain injury, but most of them, not at all. But one thing that I have asked is that question, and you and I have asked that question before, Dan, in trials, but the one about do you feel like somebody, you could tell from watching somebody you've never met if they're suffering from. You can ask about chronic pain, that's one thing, but for brain injuries, can you tell if someone's got a brain injury or struggling with memory or concentration or clear thinking just from looking at them or even from hearing them talk necessarily? And so the badger. And some people will say, "Yeah, I could totally tell.

You could just tell if someone could talk normally and walk normally, they're not that bad." But you'll find the ones who were like, "No, you can't tell at all." And they'll share stories. I've heard a million times them share stories about like, "Yeah, my dad had a brain injury and he kept working and you would never tell, but I saw this and I saw that." And they don't necessarily have to have that story, but some of them will be like, "No, you can't tell at all." And then you can talk about —

So how would you connect the dot then to their own story or your client is still trying to work? How do you connect that to how do you. I guess the health is wealthy. How do you tie that into millions of dollars if -

I'd probably talk about do you feel like that's a part of health, a valuable part of health? Do you feel like the ability to remember things and think clearly as opposed to struggling to remember things and understand things and concentrate, do you feel like that's part of health? Because on the one hand, those people, they have no. I mean, they can do it physically, they can do everything, but are mental struggles part of health? And then you can get people saying, "Oh yeah." But I'm sure there's some jurors who will tell you. I mean, they'll say all kind of things.

Yeah, that's a good.

A smart person, especially if you have a high IQ, the opposite of what you said. I've seen that a lot where you have a really high functioning. I had one recently, super high functioning, smart plaintiff who still did a pretty high functioning job. And just meeting her, I met her first couple days of jury selection. I would never in a million years think she had a brain injury, carrying out a very total normal conversation and everything like that.

She sounded smart, really intelligent, articulate.

Oh, absolutely. But it was just concentration struggles and getting tired later in the day and all these subtle things that you can't see like that. So yeah, I would definitely. But I think some people will say no. Some people are, "She's probably still smarter than I am, and I'm not asking for millions and things like that."

Well, so I mean, we kind of had that, the alternate in our last trial. Remember she was like, "I struggled to understand how to award money for depression or to find out if someone's depressed," those kind of mental or emotional injuries. So I just want to make sure I got it. So you obviously asked, "Is that part of health?" So you would do the health as well sequence in the beginning. I like that. I'm going to do that next time. And then from there, kind of see where it takes you. Is there anything more valuable than the loss of quality of life? Stuff that we've talked about before on the show. Then maybe you would move into, well, what about someone, this is a traumatic brain injury case where she's physically able to do even her job now, but she struggles with concentration, speech sometimes, memorying things, cognitive, she gets tired, headaches, all that stuff.

Does anyone think that that category of injury is not really health? Does anyone think that? Would you say it like that or how would you say it? It sounds like you have a better way.

No, no, not necessarily. That's one way to say it, but how do you feel? Yeah, exactly. How do you feel? Do those things just as important to someone's health or physical abilities or do you feel a little different? What are your thoughts on that? As long as you're throwing it at them with an open answer, then you can learn a lot from whether they're. Because like I always teach, the best jurors always have that moral clarity where the best answer you can get to a question like that is absolutely no hesitation. No, 100%. And they don't need to like, "What's your question? It depends." And the ones who just struggle with it, all they're telling you is like, "I don't 100% agree with you. It's a gray area. I'm not so sure." But people who are moved by things in trial as jurors, people who get angry at defendants or people who have a ton of moral clarity with whatever it is the defendants did or their damages resonating with, plaintiff's damage resonating.

So anytime that they're pushing back or struggling or confused or acting confused, that always is a red flag to me. That's the beauty of throwing open-ended questions at them because some of them get annoyed with open-ended questions. But you don't get annoyed with an open-ended question if you're like, no, this is Easy one for me.

If somebody asked you, Dan, or spending time watching sports stupid, I see you have a jersey and a thing. You wouldn't be like, "Well, what do you mean by sports? Wh do you mean waste of time?" You'd be like, "No, it's like whatever." So

The hesitation, even if they may say it —

Sometimes this happens with lawyers who don't understand the issue I've had, and I've had it happen a bunch of times where a juror gets really mad at them and bites your head off a little for asking the question. That's a stupid question. That's so vague, whatever. And then the lawyer sometimes will get mad at me and I'm going, "No, that's a great question. It was designed to identify people like this." And you don't have to apologize to the juror and be like, "I'm sorry, that was a dumb question." Or, "Mr. Plotkin made me ask that question." That happened a couple of times because they're just so like, "Oh my God." And one time I had somebody ask a question where the juror gave the absolute best answer. She's like, "Why would you even need to ask that question? Of course, blah, blah." And this lawyer I remember was wanting to get rid of this juror and she's arguing with me.

She's the worst juror. And I went, "She's the best juror. She was telling you 100%." I mean, so don't be afraid of jurors acting like an open-ended question is unfair. They're telling you so much when they push back or act confused.

That's so interesting, man. I don't think I've ever talked to you about that.

Yeah, maybe not. We just wasted a whole new episode.

I know, but I guess let's keep following that though. I mean, is it enough to determine if they're a bad juror just based on their. If you ask the question the right way, worded the right way, is their confusion enough for you to just write them off?

I mean, it tells me a lot. I mean, you can try to fight with them to explain the thing, but usually I've rarely seen them then be like, "Oh, I get what you're saying. No, no, no, I 100% agree with you." No, usually there's a reason behind it and everything.

So just for our listeners though, I mean, that juror is going to throw back questions at you probably, right? I mean, they're going to be like, "I don't understand. What do you mean by this?" And you don't just want to not answer because that'll give a weird impression to the rest of the jurors. So you then would follow -

If they started asking you, "What do you mean?"

I mean health, what do you mean a CEO? A CEO who does this? I guess it's always better to try to throw a question back at them,

Right? 100%. Yeah. Usually that question that you ask is a very, you're just saying, "I just want your thoughts and feelings on the subject. There's no right or wrong answers." And sometimes it'll be like, "Should companies have to be fair about..." And they go, "What does fairness mean?" Or something. "What do you mean by fair?" And then you go, "Well, I'm just asking what it means to you." I mean, this is not an objective.

Yeah, you don't have to over complicate it. I know this, but also that was where my lawyer brain went initially. It was like you do kind of want to explain what you mean so you don't sound vague, but at the same time, that's not the purpose of what the exercise is at all. The 100% purpose is to just get from their words. Again, this just goes back to always putting the moderator hat on. You're not there to explain anything to them, frankly.That's not really the, right?

And the best question is you should have asked the question. If you asked it right, you would've said, "What are your thoughts or your feelings about blah, blah, blah?" And that's how you throw it back.You're like, "I'm just looking for your thoughts or feelings." Sounds like you have some that you already, it sounds like one of your thoughts or feelings is like, well, fairness is not, there's no such thing as fair. It totally depends or whatever it is. But you learn a lot when they dodge the questions. I used to a lot of times have the lawyers ask a question about, "What are your feelings about our system where we use money to compensate for things that can't be fixed, like pain and suffering or whatever?" Some jurors will dodge the question and they'll be like, "Well, I'll do whatever the law says." And the right way to answer that is like, "No, I'm sure you will." I'm asking you a little different question, which is, but how do you feel about that law?

Some people can follow a law even though they sort of, I don't really see why. What are your feelings? And then usually they'll dodge it again and then you go, "That tells me everything I need to know.This person is not. They do not like it." Or when they say, I'm sure everyone's heard this, how many times have you heard someone say, "If proven," or something like that, "If you prove it."

Well, if you prove it, especially the tone or what they emphasized in that sentence, I mean, you can tell that juror is just probably not going to be good.

And they're usually not really answering the question when they say that. You're saying, "How do you feel about this?" And they're going, "Well, it depends on if you prove it." So don't be afraid of asking these litmus test questions that sometimes trigger people and they tell you everything you need to know.

But I think this is the best lesson for our listeners is I'm just asking you what your feelings are. What do you think? What do you feel about that? Just throwing that back at them, usually they will answer. I mean, they will give a real answer and then that could probably lead you to some cause challenge later on or get you there some way or another or get other jurors to think that way. But yeah, to try to explain, unless maybe it's, like you said, explaining if they say, well, yeah, the money to help or the money for economic damages, to explain the difference and then say, well, what are your feelings about that? That's a slight explainer, but it also throws it back to whatever their feelings are.

Exactly. And sometimes, I mean, you can do what I do in focus groups when I'm talking with jurors, which is just to say, I ask you for your thoughts or feelings. Your answer kind of depends and you have a question. Tell me what you're thinking. What does it depend on? Well, are you talking about this? Are you talking about that? Okay, so you're telling me something. You're saying it depends on what? Well, if somebody's like, they can't work anymore, then I get it. As long as you're being, you're not arguing with them obviously, but as long as you're just like, I just want your thoughts or feelings, don't worry about that juror biting your head off. All the other jurors are with you and know this person's being obnoxious. I mean, you're not losing your audience. You're just losing one or two people, so don't worry about that.

A lot of lawyers worry about that, right? You worry about -

I do. I mean, I'll be honest. Yeah, that's a concern. I mean, I feel like I've gotten over it a little more, but I still always have that fear that if I push back, they're all going to like me. But I know that's not true, but I still have that fear when I'm up there, to be honest. As long as you do it politely, I think they expect you to ask some questions. You can push back a little bit.

As long as you're helping, as long as you're just like, you tell me there's no rigt or wrong answers. Tell me what you feel about the subject. I mean, that's a fine question. Ideally, you could just be like, here's a subject. Tell me what you're thinking. Tell me what you're feeling. That's fine. The more open-ended, the better. Because then it's like, not only do I learn a lot and there's no safe answers and they can't just say yes or no to try to hide, but also I find, and you see the stand, the defense, they really struggle to know why you're asking questions even when they may seem obvious to you or me. And unless it's a yes or no, do you think the verdicts are too big or not big enough? And they answer that question and the defense is like, I know that's a good answer for them.That's a good answer for me.

Open-ended questions, the defense is like, I don't know what to do with this. And then they come back and then they half the time and all they want to do is argue or fix that juror by saying, but under these set of facts, would you agree with me on this? And then the juror's like, sure. And then they're like, don't strike that person who gave you a great answer.

I mean, I know we don't talk about defense voir dire here, but I do think it was interesting in that last trial, the defense attorney, and she was good. I mean, she was at a big firm. She definitely knew what she was doing, but I wonder if that was something she learned at one of these conferences. She asked two questions. I think the first was about if a mother. I though it was the McDonald's hot coffee, but then she started talking about a mom goes to McDonald's, orders chicken nuggets. At the

Drive-through.

They're too hot and she hands it back to her.

Well, she didn't know it was too hot, but just hands the box back to the little kid. To the little

Kid.

And the kid drops it and it's super hot and gets burned. And she's like, who's at fault? Who should be responsible? McDonald's or the mom?

Who's responsible?

And then there was a second one about Tesla. Somebody's got a self-driving Tesla and they're not paying attention, their hands are on the wheel and they crash and who's responsible? And to me, it was funny. At first I was like, what exactly is she trying to get at these? Because this is not at all our case and none of

It - Have you seen defense ask those kind of questions like that?

No. And we could have objected because it is totally improper to be like, let me give you a hypothetical case and you give me your verdict on this case. But I mean, that's what she was asking. But because I knew that she was going to get answers that were misleading, I think, I was just like, let's let her ask these questions. Because here's the problem. And then later on she explained, tell me what you think about my questions about, she said personal responsibility versus corporate responsibility. So to her, that was the same as her case, but really she was asking, how do you feel about a parent's responsibility to take care of their kids? That wasn't in our case. And then the self-driving Tesla, all she learned was all of our jurors hated self-driving Teslas.

Yeah. I mean, well, hey, that was interesting.

But also thought you're stupid for thinking that that would be safe and you have a responsibility if you're driving a self-driving Tesla to pay attention. Again, nothing to do with our case at all.

I imagine. I mean, just knowing these attorneys, they went to some, that's the new question that's floating around. I don't know. That's

The first time I've heard it, but yeah, we'll see if we keep hearing it or not. Yeah. She's a smart lawyer. She could have come up with it on her own and kind of like.

Yeah, yeah. No, for sure. I mean, she was great to work with. I mean, nothing against her at all. So you though she was just trying to introduce personal responsibility as a precondition?

That's what she said later on, not the first round, but when she had more jurors, she said, What do you think about my questions about personal versus corporate responsibility? And she really thought if the people who would say I would blame McDonald's and Tesla would be bad for her. She didn't really strike any of the folks who said that parent should be checking those nuggets for the kids. And what does that have to do with trip and falls? And not a lot.

I though it was interesting though. I mean, it was good. It

Was a crazy scenario, too. I like the one guy. There's one guy who we struck because he was not a good juror for us, but he was like, I just have to say, I've never seen a chicken nugget that was so hot that it could cause serious burns. So he didn't like her question, this hot nugget.

When she said McDonald's, I though for sure McDonald's hot coffee. Here we go. I was like, this is interesting. The defense spends so much time talking about chicken nuggets.

I'll say this. If you're a lawyer who's listening and you get a multimillion dollar hot nugget verdict, we'll have you on the show to talk about the hot nugget verdict.

Yeah, we will 100% do that. The hot child badly burned by a six piece.

And to me, this is totally an aside. I was just thinking, first of all, how would you know that the nuggets were hot? Because a bunch of our jurors were like, "You should know that those nuggets are going to be hot." Through the box, you'd feel such a weird question. And one guy was like, "I always would open the thing and check the nuggets." No, you wouldn't.

God, I forgot about that. Were they

Heat?

People were really dissecting their chicken nuggets.

Oh yeah. Are they older kids or are they younger kids? They were asking all kinds of questions.

That one juror who was really good for us, I think they kicked, but she was like, "Well, if the mom is just always handed back the nuggets and it just became a habit and then McDonald's did one really hot and maybe she didn't notice." And she broke down the whole drive-through worker to mom to baby whole breakdown of the play that went down.

Now I'm kind of curious to know if a defense lawyer's like, "No, my next two trials or those are the..."

Yeah, we were her test

Case. I have a Tesla trial. Tesla and McDonald's are my next - Yeah,

She's got some big ones. She was just testing it out on my trip and fall case.

She's like, "This case is easy. I don't have to worry about these tricks." Yeah,

That's really funny.

Oh my gosh.

It's funny, I saw an ad, there's that movie coming out, like the Wile E. Coyote and how it's a personal injury lawyer. Have you seen the ads for that? I think that's going to be good for us. I mean, it's like suing big evil corporation. I don't know. I have the TV on in my office. I just saw that out of the corner of my eye and I showed it to my kids. I'm like, "Yeah, this is what we do. We fight the big, awful corporations and where jurors see that too." Oh man, we're going off the rails without a guest talking about chicken nuggets and cartoons.

I have Will Forte on here to. He's a plaintiff lawyer in that case.

Is who?

Will Forte, Wiley Coyote's lawyer in that case. We'll get him on here.

Yeah, I saw that.

But yeah, no, I love doing ones on damages. I mean damages, I'm sure I've said this in other ones, but I've been on record many times as saying your juror's views in a vacuum on damages are actually less important to me than their views about liability because there's so many. I mean, I just had someone do a focus group the other day and told me for a case that was like, I asked some questions about. I did some voir dire before and she was like, there was one juror who was like, I don't really like big damages. I think damages awards are too big. I wouldn't award a huge one. But then she heard the case and she wanted to give the most. She wanted to give like, I want to give 75 to 100 million dollars for this case. And I was like, that's case in point where there's no such thing for every juror that tells you I think damages are too big.

There are some cases that will trigger them and they'll be like, I'm now so mad. Liability, getting angry overrides most of those other things. There's some exceptions. If you get some CFO or something who's like corporation should never have to pay. But that person's not going to get that mad at the underlying stuff. So I've always taught I can almost pick a good jury without even asking anything about damages. And I've done it a lot of times. You always do learn something when you ask about damages. It may be 95% of the good jurors or we knew it from the liability questions, but.

Well, so wait, hold on. We've talked about it, and I don't think you've said this, but a lot of attorneys believe if you have a short amount of time, you have to only talk about money.

Right. And that's something I think I've taught a lot that I disagree with it. I think you learn more about how much they want to hold a defendant accountable based on how they feel about the liability stuff. Are they going to get pissed off? Are they going to. Yeah.

Wow, Harry, I know we've talked about this, but that is interesting, man, because a lot of people that we've had on our show have said.

Oh, 100%. Yeah. That's one of the one things that I think is one of the hot takes or one of the counterintuitive things that I've seen a lot of times. But my point is as long as you have time, you definitely do both of them and you learn a lot about your jurors. And from time to time, you will get somebody who is great on liability and then for some reason there's something about damages that they're just terrible about. But there's also people who are great on damages, questions, and I've seen it in focus groups and even in trial where if they're not good on liability, the sweetest person who I could give a hundred billion dollars for an injury, they're like, "This defendant's not responsible, 0%." And they'll defense the case in a second. If they're not upset, they're not going to give you anything.

If they're like, "Oh, I don't think..." A school teacher who's like, "Oh my God, I love kids. It breaks my heart when kid gets hurt and I would give billion dollars to a kid if they were hurt." Entities being sued for not supervising a kid going from here to there. In my school, we don't do that. They defends you. I don't care what they feel about damages. Their sympathy is not going to override how they feel. So I would say don't ever ask about only damages without asking about liability. It's safer to ask about liability and no damages, but do both. I mean, that's what we're talking about. But I think the Health is Wealth stuff not only tells you who really is going to connect to Health Is Wealth and give a lot of money, but also tells you, I think it does pump up the damages.

I think it gets them prime before you actually put on your case.

The Health Is Wealth is not really going to be a cause challenge, so to speak. It doesn't lead there specifically. It's a good foundation, right?

Not directly. I think it's a good platform to then talk about cause things and go, "We've talked about this concept." Because you introduce non-economic damages, you've educated them that money's not going to help, but that's not what it's for and everything. And so then it's super easy to say, "Well, I mean, who's not on board with this?" And you've put it in the best possible light you could put it in for them. And if you still have somebody telling you no, you're wrong about those people. I don't think those are people who haven't thought about it and say, "I wouldn't give our juror who was like," I wouldn't give more than two million and she wanted to give way more than two million at the end. "You've put it in the best light. She's though about it now. If she still tells you," I'm not going to give a lot of money, "then I think you believe her.

And I think if you get them for cause, then if that person gives you a cap or they say," I think it's unnecessary and pointless to give someone money for those things if they're not going to help, then I think you get cause for sure on them.

Yeah, but I think this goes back to your point that not a lot of people, or at least people have disagreed with, which I mean, I do agree with the way of your take on it, but people just want to say like, "Oh, I threw 10 million out there. I threw 20, I threw five million," whatever numbers are thrown out there, and people just felt like that was too high for them or whatever, and then they just wipe them off. But I agree, you've learned all that in 10 minutes of questioning just by someone saying yes or no, or I don't know.You're right. I just think the foundation has to be much bigger because they have no idea what the value of the case is at this point or what's going to piss them off.

Yeah, especially in Imagine, they get the injury, but especially in an employment case, it's a hundred times worse because they're like, "Why would somebody need emotional distress over losing their job in a case where they got another job in two weeks or something?" And yet those cases can sometimes have huge verdicts.

Dude, I mean, I think that proves your theory, right? I mean, I think that just. Because I bet most jurors, and we've talked about this with deRubertis and Bernard Alexander, is most jurors initially, if you just throw out, we're asking for $10 million for emotional distress from being fired, I mean, 80% of the jurors are going to be like, "That's crazy," or more. And I don't know if it was David or, I mean, you would know better, but they were saying sometimes they don't even talk about damages really at all or talk about a number really much at all.

Yeah, David doesn't in his opening, he doesn't talk about money. We'll say in the mini opening, we'll have a voir dire question about we're going to be asking for many millions of dollars. Actually, David says many several times, but then I think in opening, he doesn't say numbers because you're not there yet.

Yeah, he does do the mini-mini.

At least in employment trials, he feels like the opening is not what seals the deal, even though that you can shock him, but it's delivering on the evidence. So yeah, I mean, remember when for those of you, if you haven't watched that episode, that's a great episode. I mean, Mitnik was the one who gave the best talk for why he does not like to give a specific number until closing, but I think you have to just generally. So that's why it's so hard, as we're talking about, to pin them down. Could you give $35 million? Could you give $40 million in this case? I mean, they don't know. I guarantee if somebody did a study where they brought in 200 jurors and they did that, what's the most you would give? What's your cap? And then they showed them the case. Those numbers would mean nothing.

There are probably many people who said, "My cap, I have no cap," and they would give a low amount, and some who would be like, "My cap is..." They would blow through their cap.

No, that's a great point, man. And I think all of our listeners, I am included, we've got to take that to heart when you get certain answers. Just got to be very careful. You got to be sure on lots of other things before you just use that one answer.

Well, it's been fun, man.

This has been great, dude.

Yeah.

I love it. Thank you to LawPods and for tuning in, and we'll keep these coming. So thank you for everyone to tune in.

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