By: Dr. Shelley Spiecker
Yesterday I received a call from a client seeking argument strategies for a punitive damages presentation in a bifurcated personal injury lawsuit. After discussing argument approaches, I shared with him what I consider to be the single most important piece of advice for any attorney defending a company in a bifurcated trial today – educate jurors at the outset of the trial that the case is bifurcated and that they will deliberate on punitive damages should their initial verdict trigger the punitive phase.
True, research confirms that bifurcation makes it less likely jurors will find against a defendant on liability and causation. However, when jurors deliberate punitive damages in bifurcated trials in which they are unaware during the compensatory phase that they will be given the opportunity to award punitive damages, they augment the amount they award in compensatories, are more likely to award punitives when that phase comes, and their punitive damage awards are higher compared to when they are aware of the potential for a punitive phase.