In chapter 9 of Damages Evolving, trial consultant David Ball discusses how to strengthen your damages arguments by using flashpoints to frame your cases and understand how jurors are likely to respond to different harms. To learn how you can use this tool to better frame your cases, read the excerpt below:
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Flashpoints
Flashpoints are harms that evoke the strongest juror responses. This chapter explains flashpoints, their empathy effect, and how to use them. [...] Think of a flashpoint as eliciting strong knee-jerk reactions to each kind of injury or injury consequence.
A flashpoint is not about an injury’s medical seriousness; it’s strictly about juror response. A serious injury can be a weak flashpoint, and vice versa. Example: To most young adults, your client’s facial scarring evokes much greater knee-jerk response than broken bones or even a heart injury. To most senior citizens, it’s the opposite. Either way, the juror response, not the injury’s medical seriousness, makes the flashpoint.
A flashpoint analysis of your case helps prevent you from missing anything. Ask yourself, “What are the consequences of this kind of injury that will most impact the kinds of jurors we’ll have?” And, “What kicks jurors the hardest?”
So don’t focus only on the most severe injuries. High flashpoint levels are often a more powerful way to frame your damages case.
While this chapter focuses on damages flashpoints, flashpoints are as effective for negligence issues (some kinds of negligence evoke stronger juror reactions than others) and even causation (an expert witness trying to deceive jurors is a flashpoint; an expert’s honest error is not).
Spotting Flashpoints
You can quickly spot flashpoints. One way is to list all your client’s injuries and injury consequences and ask people to number them in order of those they’d least want to experience. I’ve done this with good results on social media. It’s a common, though kinda gruesome, kids’ game: Would you rather be sliced up by a lawn mower or run over by a cement mixer?
Common Flashpoints
The empathy levels in the list below are just estimates. Focus groups and even casual conversations will reliably show you the empathy levels for the flashpoints in your particular case.
Flashpoint versus Empathy
Flashpoints are anything that evoke robust responses from jurors. Empathy is a particularly important kind of those responses. Common flashpoints:
- severe physical injury (moderate empathy)
- fear of future injury (high empathy)
- death (mild to moderate empathy)
- losing loved one to death (moderate empathy)
- losing one’s child (high empathy to those who’ve had children)
- ongoing terror (high empathy)
- shame/humiliation (high empathy)
- being immobilized due to injury (high empathy)
- chronic physical pain (moderate empathy, but proportional to severity)
- involuntary loneliness/forced long-term isolation (high empathy)
- expulsion from one’s group (moderate empathy)
- loss of ability to protect one’s children (high empathy)
- loss of material goods (mild empathy)
- loss of mental or physical abilities (moderate empathy for most such losses)
- loss of home (moderate empathy)
- blind from birth (mild empathy)
- loss of eyesight from injury (high empathy)
There are many others.
How Do Flashpoints Work?
They all work in the same way. For example, let’s look at loss of eyesight. This flashpoint has hardwired our brain to avoid blinding eye injury at all costs. And we feel great empathy for anyone who has been blinded. A flashpoint means strong and automatic avoidance and elicits some level of empathy when the harm happens to others. (Note that we feel less empathy for a person blind since birth.)
Some flashpoints elicit high levels of empathy from a wide range of people. For example, forced isolation and enforced involuntary loneliness flashpoint: most of us do a lot to prevent or stave off being lonely for the rest of our lives, and we tend to feel high empathy for lonely people, including strangers. The image of a ninety-year-old staring out a window wishing her family would come visit evokes empathy. The empathy is even higher when it’s someone we love. But most of us feel it for almost anyone, except maybe those we hate or fear.
Barrier to empathy: People rarely empathize with anyone they dislike or fear. If you have an unlikable client, you must do whatever you can to remedy the problem.
Empathy versus sympathy: This distinction is important when it comes to damages drivers. Sympathy means feeling sorry for someone else without you feeling or personally identifying with their feelings over their pain or plight. We have sympathy for, not sympathy with them. And sympathy has only one emotion: sorrow.
But empathy means actually experiencing—even if in a small way— the other person’s pain or suffering. That’s why we have empathy with, not for, someone. We personally feel it, at least a little. We wince with it, for example. And instead of one emotion, we can feel the whole range of the person’s emotions. This is why empathy, far more than sympathy, unites jurors and plaintiff on a fundamental human level.
This distinction should guide which harms to emphasize. For example, we empathize more with a person’s enforced loneliness than with their physical pain. So don’t subordinate loneliness to the pain.
And remember, a trial (or opening or testimony or whatever) is about whatever it spends its time being about. When you spend most trial time on pain and hardly any on immobility and isolation, you’re out of balance.
Side benefit: An empathy-based (that is, flashpoint) damages case bolsters your liability case.
Caveat: Never overtly try to create empathy. Doing so can backfire with jurors and endanger your verdict on appeal. Simply emphasize the empathy-evoking harms as a normal and proper part of your case. You can’t be faulted for appealing to emotion that the harms themselves evoke.
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Interested in the full chapter on how to apply this concept to your cases, including examples from a brain injury case and trial transcripts from Nick and Courtney Rowley demonstrating how they successfully use this tool to win cases for their clients? Order your copy of Damages Evolving today (also available in audiobook).
Damages Evolving by David Ball, Artemis Malekpour, Courtney Rowley, and Nicholas Rowley with contributions from Aaron Broussard, Dorothy Clay Sims, and Pate Skene.
For more on how to better understand juror responses to your cases, register for the upcoming webinar with David Ball and Artemis Malekpour.
Tuesday, October 28th ♦ 3:30 p.m. ET ♦ 12:30 p.m. PT