Voir Dire for Damages: Getting Jurors to Commit Before Trial Starts

Voir Dire for Damages: Getting Jurors to Commit Before Trial Starts

There's a juror in your panel right now who has already decided that no dollar amount is appropriate for pain and suffering. They haven't said it. You haven't asked. And they're about to become the foreperson.

That's not a hypothetical. That's what happens when you skip damages voir dire — or worse, when you treat it like a formality.

I've been trying plaintiff PI cases for over 20 years. More than 40 verdicts. I've seen what happens when a holdout anchors the room at zero on non-economic damages. And I've watched young lawyers walk into closing argument having no idea that three of their jurors came in with a belief that money for pain and suffering is either made up, immoral, or irrelevant. Those lawyers lost — not because of the facts, not because of liability — but because they never asked the right questions at the front.

Why Damages Voir Dire Is the Most Neglected Part of Jury Selection

Most lawyers spend voir dire trying to uncover bias on liability. Did anyone hear about the case? Does anyone have a personal grudge against plaintiffs? Has anyone been sued before?

Those are valid questions. But liability bias is only half the battle.

You can win on liability with a strong case and get a $0 verdict on damages. It happens. And it happens because somewhere in that jury room, there's a person who believes — deeply and sincerely — that money doesn't fix a broken hip. That your client should be grateful she's alive. That pain is just part of getting older and suing someone over it is shameful.

That person didn't lie during jury selection. You never asked them anything that would have surfaced it.

The defense doesn't need to plant that juror. The panel will provide one or two all on its own. Your job is to find them before they sit.

The Three Biases You're Looking For

There are three distinct belief sets that will tank your damages case. Learn to recognize the language that signals each one.

1. "Money Doesn't Fix This"

This juror believes that because money can't undo the injury, it's inappropriate to award it. They frame it as principle. "No amount of money brings back what she lost." The statement sounds sympathetic. It's actually a poison pill.

Questions that surface this bias:

• "Does anyone here believe that if money can't fully fix someone's problem, it shouldn't be awarded at all?"
• "Some people feel that if someone can't be made 100% whole, there's no point in a money award. Does that resonate with anyone?"
• "Is there anyone here who feels uncomfortable with the idea of putting a dollar value on someone's pain?"

When a hand goes up — and one will — don't move on. Follow up: "Tell me more about that. What is it about that that doesn't sit right with you?" Let them talk. Let the rest of the panel hear it. Then ask if anyone else feels the same way.

2. "She Should Just Be Grateful to Be Alive"

This juror minimizes the damages by comparison. They're thinking: it could have been worse. At least she walked away. People go through real suffering. This is the juror who spent three days on a jury five years ago where a plaintiff was paralyzed, and now a hip replacement feels trivial by comparison.

Questions that surface this bias:

• "Has anyone ever been through something difficult — an injury, an illness — and felt that you just pushed through it? That it was part of life?"
• "Is there anyone here who thinks that if someone is up and walking around after an accident, a lawsuit for pain and suffering might be excessive?"
• "Some people believe that unless an injury is catastrophic, emotional and physical suffering damages aren't really warranted. Does anyone lean that way?"

3. "Pain and Suffering Is Made Up"

This is the most dangerous juror in a non-economic damages case. They don't think pain is fake — they think it's unquantifiable, and therefore shouldn't be awarded. They believe the whole concept is a windfall, a lottery ticket, an invitation to exaggerate.

Questions that surface this bias:

• "Does anyone here feel that damages for pain and suffering are too subjective to be part of a court case?"
• "Has anyone ever felt that pain and suffering awards are part of why insurance rates are high? Would anyone here be reluctant to award those damages even if the evidence supported them?"
• "If you believed someone was genuinely suffering — really believed it — would you be comfortable putting a dollar amount on that? Or does that feel uncomfortable to you?"

What This Looks Like in a Real Case

Here's a case I want you to picture.

Margaret is 60 years old. She slips on an unmarked wet floor at a grocery store. She fractures her hip. She has surgery — a total hip replacement. She recovers, mostly. She can walk. She can drive. She can get to her doctor appointments.

But she can no longer get down on her knees to tend the garden she's kept for 35 years. She can no longer pick up her grandchildren — her doctor has told her the risk of a fall is too high. She's described it this way: "I used to be the one who held them. Now I'm the one who has to be careful."

That's a real loss. Loss of enjoyment of life is a real category of damages. And there will be jurors in your panel who don't believe it's worth anything.

Here's how you surface them on this specific type of case:

• "If a woman could walk and drive and take care of herself, but she could no longer do the things that gave her life meaning — gardening, holding her grandkids — would you feel comfortable awarding damages for that loss? Or would that feel like too much of a stretch?"
• "If the evidence showed she genuinely gave up something important to her — not because she was exaggerating, but because her body won't let her do it safely anymore — would any of you have difficulty putting a dollar value on that?"
• "Some people think that if you can walk out of the hospital, you should count your blessings. Does anyone feel that way?"

You're not looking for jurors who answer these questions perfectly. You're looking for the ones who hesitate, who qualify, who tilt their head and say "well, it depends." Those are the follow-up conversations that either rehabilitate them or give you cause.

The Mistakes That Sink Young Lawyers in Damages Voir Dire

Mistake #1: Not asking about money at all.

You spend 45 minutes on liability bias and three minutes on damages. You figure the jury instructions will cover it. They won't. By the time you get to closing, the juror who thinks pain and suffering is a scam has already made up their mind — three days ago.

Mistake #2: Asking yes/no questions.

"Can everyone here award damages for pain and suffering if the evidence supports it?" Every hand goes up. You learned nothing. Open-ended questions are the only way to hear what people actually believe. Make them talk. The disqualifying views almost always live inside a longer answer.

Mistake #3: Not following up when a hand goes up.

Someone raises their hand and says they're not sure about pain and suffering damages. You say "okay, thank you" and move on. You just left the most important conversation in your voir dire on the table. Every raised hand is an invitation. Follow up, dig in, and let that person explain themselves in front of the entire panel. You'll either get a for-cause challenge or you'll educate 40 other people at the same time.

What to Take Into Your Next Voir Dire

1. Write out your damages questions before you walk in. Don't improvise this. Have at least 6–8 questions ready that target the three biases above.
2. Lead with the concept, not the ask. Don't ask "can you award for pain and suffering?" Ask whether they believe in it first. The commitment question comes after.
3. Use open-ended questions every time. No yes/no on damages. Every question should invite a sentence or a paragraph in response.
4. Follow up every raised hand. Someone who agrees to talk will tell you more than you could ever discover on your own.
5. Let the panel do the educating. When someone expresses a bias, ask if others feel the same way. Now you've got a group conversation. Jurors are more likely to commit to a position — in either direction — when they say it in front of a room.

The Bottom Line

Damages voir dire isn't a formality. It's where you find the juror who will blow up your entire case in deliberations — before they sit.

You don't have to be perfect at this. You have to be intentional. Ask about money. Ask about pain. Ask about what someone deserves when they can't hold their grandchildren anymore. Let people answer. Then listen to what they actually say.

The juror who will anchor your jury at zero is in the room right now. Go find them.

Want to go deeper on identifying bad jurors in voir dire? Read How to Identify a Bad Juror Before They Sit — a breakdown of the red flags most lawyers miss during jury selection.