By: Scott Shachtman and Sly James
Presenting Personal Injury Damages
In order to understand your client’s damages, you must get to know your client. To me, this means spending a considerable amount of time with the client from the beginning to the end. Most lawyers will start off by getting the police report or by ordering medical records. I start off by having a personal meeting with the client and getting to know him or her. Often, I will go to the client’s home. By getting into the client’s personal space, you can garner a wealth of information.
Although liability and damages are key components to a successful Plaintiff’s case, I believe that it is equally, if not more important, to learn as much about the Plaintiff as you can from the get go. The jury will be influenced by the character of the Plaintiff. A very likable Plaintiff can take an average case and make it a good one. On the other hand, an unlikable Plaintiff can greatly diminish the value of any case.
The bottom line here is that you must get to know as much as you can about your client. This will enable you to best represent his or her interests.
Talking About Damages
Generally speaking, damages can be broken down into two broad categories – (1) non-economic and (2) economic damages. Economic damages are the items that can be valued in terms of dollars, including but not limited to, medical bills, lost wages, repair bills and in some states, the loss of care, guidance and support. The non-economic damages are commonly referred to as “pain and suffering” damages and/or “human losses”.
David Ball has written an exceptionally good book called “David Ball on Damages,” which I highly recommend that you purchase and use in your daily practice. David Ball, David Ball on Damages (2nd Edition, 2005). Many of the things that I will talk about come from studying David Ball’s book.
When talking with the jury about “pain and suffering,” it is helpful to talk in terms of “human losses”. Ultimately, we want the jury to provide the Plaintiff with compensation to:
- fix what can be fixed;
- help what can be helped; and
- make up for what cannot be fixed or helped.
David Ball, David Ball on Damages (2001).
Your client’s “human losses” and/or harms should be presented through as many unbiased witnesses as possible (i.e. police officers, firemen, EMT’s and independent fact witnesses). It is best not to have your client present his or her own harms unless they are self-evident (i.e. scars, speech impairment, brain function, paraplegia/quadriplegia, and/or external fixation devices). If your client takes the stand and simply talks about all of the problems he or she has as a result of this wreck, he or she may be perceived as a whiner. It is important for the jury to like and care about your client.
Where the injuries are devastating and lifetime care is going to be required, you need to make sure to communicate to the jury that there is hope for your client. With the right medical care and treatment, Mr. Client will be able to work from home and watch his grandchildren grow and eventually marry. Perhaps, with the recommended therapy he or she may also walk again one day.
We have found that several damages charts can be used to present this information to the jury. The first chart that I recommend preparing is a Harms Chart. This chart should include a list of all of the harms suffered by your client and the source of the information. For example, if your client suffered a cervical spine fracture and now has a rod and some screws in her neck, both the fracture and the hardware would be listed as separate harms. When the treating doctor testifies, you can have him talk about all of the harms and check them off as he describes them to the jury. Ultimately, you will have a chart that can be admitted into evidence for the jury to evaluate.
Another chart that is helpful for the jury is a Medical Expenses Chart. This chart simply shows the jury dollar for dollar how much money it cost to treat the injuries at issue in the case. If there are future medical expenses, they can either be included in this chart or presented by way of a Future Medical Expenses Chart.
Lastly, if your client suffered or will suffer a loss of wages, then a Lost Wages Chart should also be prepared.
In addition to the use of Charts, I highly recommend having your experts use any demonstrative aids that will help them explain their opinions to the jury. For instance, if you have a TMJ case, have your Oral Surgeon use a replica of the jaw to demonstrate what happened to your client in the wreck. Your surgeon can also show the jury the hardware used to hold your client’s jaw together and how the surgery was performed. This will help the jury understand exactly what has happened to your client as a result of the careless and reckless conduct of the defendant.
It is also helpful to use economic damages to support your non-economic claims. This principle is known as “anchoring”. The argument goes like this – Isn’t Mrs. Client’s life worth at least as much as it cost to keep her alive? Or, isn’t Mrs. Client’s life worth at least as much as the negligent medical provider billed? By anchoring your human loss damages to the cost of the medical bills, you are giving the jurors a concrete starting point to get to where you would like them to go
David Ball argues that there are four basic principles of damages that shape juror decisions about money damages:
- Harm (degree – the greater the harm, the higher the sum);
- Worthwhileness (of money);
- Jurors job (to fix, help, and make up for); and
- Time (proportion spent on harm and money vs. that spent on liability.)
Ball also argues that the case is about whatever you spend the most time talking about. Therefore, if you want the jury to consider big damages, you must spend a significant portion of the trial talking about damages. He further argues that defense attorneys want to spend minimal time talking about harm and money and concentrate on liability instead. If we fall into the pattern of concentrating on liability, we make the case about liability.
Wrongful Death Damages
In a wrongful death case, it is the lawyers job to help the jury understand the value of the decedent’s life. Those losses are spelled out at § 537.090.
- § 537.090. Damages to be determined by jury—factors to be considered
In every action brought under section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable.
Note that the statute says “factors to be considered.” Therefore, it is important to both define the factors and, where possible, to expand on them. When defining the factors, it may be advisable to be familiar with their plain meanings:
“Service” may be defined as:
- Employment and duties or work for another, as for a government;
- The performance of work duties for a superior or as a servant;
- a. Work done for others as an occupation or business;
- A variety of work done for others, especially for pay.
Consortium has many meanings. In common vernacular, a consortium means:
1. a. An association or a combination as of business, financial institutions, or investors, for the purpose of engaging in a joint venture;
b. A cooperative arrangement among groups or institutions; a library consortium.
2. An association or society.
3. Law provided the spouse for the company of, help of, affection of, and sexual relations with his or her mate.
Another definition of consortium is an agreement, combination, or group (as of companies) formed to undertake an enterprise beyond the resources of any one member. In the legal sense, it is a marital partnership. It means “the right of one spouse to the company, affection, and assistance of and to sexual relations with the other; also: the right of a parent or child to the company, affection, and assistance of the other.
Companionship means the relationship of companions; fellowship.
- To soothe in time of affliction or distress.
- To ease physically; relieve.
- A condition or feeling of pleasurable ease, well-being, and contentment.
- Solace in time of grief or fear.
- Help; assistance.
- The act, practice or profession of instructing.
- a. Imparted knowledge.
b. An imparted or acquired item of knowledge; a lesson.
- a. An authoritative direction to be obeyed; an order.
- One definition of guidance is counseling, such as that provided for students seeking advice about vocational and educational matters.
- The act of exchanging opinions and ideas; consultation.
- Advice or guidance, especially as solicited from a knowledgeable person.
- A plan of action.
- Private, guarded thoughts or opinions.
- A lawyer or group of lawyers giving legal advice and especially conducting a case in court.
- To coach in or accustom to a mode of behavioral performance.
- To make proficient with specialized instruction and practice.
The term “support” has many meanings.
- To bear the weight of, especially from below.
- To hold in position so as to keep from falling, sinking, or slipping.
- To be capable of bearing; withstand.
- To keep from weakening or failing; strengthen.
- To provide for or maintain, by supplying with many necessities.
- Maintenance, as of a family, with the necessities of life.
It is good practice to discuss these factors individually, rather than in a group. In order for a jury to assess the value of each factor lost, they should clearly understand what it means and how it specifically relates to the case.
It is not enough to simply define the damages to which one is entitled in a wrongful death case, we must find ways to motivate a jury to seriously consider and award those specific damages. In order to motivate a jury to consider such damages at the end of trial, the trial itself must contain evidence and testimony that support the damage factors. Therefore, there should be testimony or anecdotes of how the defendant trained, counseled, supported and guided, etc.
Making the harms visible is very important. After all, a picture is worth 1,000 words. The more personal and compelling the support for the factors, the more likely the jury will understand and compensate for the loss. The lesson to be learned is that in order to increase non-economic damages, we must spend more time building the foundation for those damages throughout the case.
In Wentling, the plaintiff husband, Rocky A. Wentling, brought a wrongful death action on behalf of himself and his two children based on the defendant’s malpractice in improperly administering anesthesia to his decedent wife. At trial, plaintiff offered a damage instruction that read, in pertinent part:
Your verdict must be for the plaintiffs, and two types of damages shall be allowed as follows:
Limited Damages: Limited damages include mental anguish, suffering, bereavement, loss of society, and loss of companionship… For these items of damage you may not allow more than $25,000 which is a limit set by the legislature…
Unlimited Damages: There is no legislative limit on the amount you may allow for unlimited damages. This type of damage includes all items listed below:
a. For Rocky Shawn Wentling and Shane Adair Wentling:
1) Loss of services, attention, parental care, advice, protection.
2) Loss of educational, physical, and moral training and guidance.
b. For Rocky A. Wentling:
1) Loss of services, attention, marital care, advice and protection…
“Unlimited damages must relate to a loss of money, or something by which money or something of money value may be acquired.”
Id. at 941-942.
The Defendant argued on appeal that the italicized clauses of the “Unlimited Damages” instruction were erroneous because there was “no evidence of pecuniary loss” and, therefore, those items should have been included in the limited damages and capped at $25,000. The Court disagreed.
The Court reviewed the evidence presented at trial concerning loss of services, care and guidance, and specifically made note of testimony regarding the couple’s closeness in their marriage, how the decedent cared for the plaintiff during his illnesses and how she helped him in some of his construction jobs. The Court also took notice of how the decedent wife had been deeply involved in the in-home care of the couple’s handicapped son.
The plaintiffs also produced an expert economist who testified about the monetary value attached to specific homemaking chores such as dietician, chauffeur, buyer, cook, dishwasher, housecleaner, laundress, nurse, and others. Based on her age and projected time of retirement, he established a monetary value of $586,071.00. Id. at 947. He also testified that there were other elements of loss not included in that figure. Although he could not place a specific dollar figure on such elements as moral training, social training, educational assistance, a mother’s role as nurturer and counselor, companionship and services to her husband, these elements, nonetheless had real economic value insofar as they contribute to a person’s welfare, ability to mature, and obtain productive employment in society. Id.
In considering the conflicting positions of the parties, the Court posed this question: “Is the inability of plaintiff and his expert witness to translate the loss of services, care and guidance into a specific monetary figure fatal under McCart to plaintiffs’ recovery? We think not.” Id. at 948. They found that plaintiff had satisfied his burden of proof by showing the nature and extent of the losses, and “the triers of fact are presumed to be capable of converting the losses into monetary equivalents on the basis of their own experience.” Id. (Emphasis added.)
To hold otherwise would allow the defendant tortfeasor a virtual windfall simply because these losses are not capable of precise measurement. In addition there is really no serious contention that the care, guidance and services of a spouse and parent lack monetary value.
Wentling may offer a blueprint for expanding the definition of economic damages in a wrongful death case in Missouri. The ability to make this expansion is especially critical in medical malpractice and nursing home negligence wrongful death cases where non-economic losses are capped.
Personal Injury Settlements
Relationships are key. Everyone has a different style and I am not suggesting that you change yours. However, I am going to tell you what has worked for me. I am a people person, who truly enjoys meeting knew people and human interaction. I spend most of my working days on the telephone gathering information and working with lawyers, adjusters and clients to resolve cases. When adjusters and/or lawyers know you, like you and trust you, things usually move more quickly and get done.
The bottom line here is that you should make every effort to get along with your opposition. Life will be better for you and your client if you simply get along with the other side.
Some cases can be settled out of court for a reasonable amount of money. The easy example is the clear liability auto wreck where the only real issue is how much. Check the temperature of the insurance company before you decide whether to file suit or not. Most of the time, the insurance adjuster will tell you up front whether the insurance company will be disputing liability. If there is no dispute over liability, then it usually makes sense to try and work things out.
Sometimes I will go ahead a file suit in order to get a scheduling order and trial setting, and still work with the adjuster to resolve the case. That way, if the insurance company will not pay enough to settle the case, we are still on track.
Trial of the Plaintiff’s Personal Injury Case
Be prepared, play nicely and most of all be yourself. Do not try to be someone who you are not. You should also do your best to get along with everyone in the Courtroom, especially the Judge, the clerk and the court reporter. Although being nice to everyone in the Courtroom will not win your case, being an arrogant pain in the ass could certainly help you lose it.
Be respectful and do not argue with the jurors. Ask open-ended questions and learn about their beliefs and biases. After you have determined that a juror has certain biases that will affect his or her ability to be fair and impartial, make sure to ask them whether they can be fair and impartial to both sides in your case. Essentially, you need to politely get them to strike themselves for cause.
Never push too hard and always be polite. You should not make anyone feel bad about their views or beliefs. Instead, you simply must make sure that the judge impanels a jury that can be fair and impartial to all parties in the litigation.
Your opening statement should focus on two things: (1) the defendant’s bad conduct and (2) the Plaintiff’s damages. The case is about what you talk about the most. Some time will have to be spent on liability. This can certainly be done by telling the story. The focus of your story should be on the defendant’s bad conduct. Tell the story from the defendant’s point of view, pointing out the various acts of negligence.
After you tell the story and establish the bad conduct of the defendant, then talk with the jury about the physical evidence at the scene of the wreck using pictures and video if possible. This will help them understand the mechanism of the injury. Then, walk the jury through your client’s damages letting them know which witnesses will be called to support each and every piece of your damages case.
Presentation of the Evidence
Witness order makes a difference. Start with your strongest witnesses. Put your weakest witnesses in between strong ones and end with an important message. Your first witness should be able to tell the jury the story and most importantly the facts that support your negligence claim.
When presenting damages, don’t let your client take the stand and whine about his or her injuries. Let someone else do the whining. In other words, have the Plaintiff’s daughter testify about all of the problems that Mom has had as a result of the wreck. This testimony can also come from co-workers, police officers at the scene of the wreck, friends, other family members, the defendant and treating doctors.
Use demonstrative aids to help your witnesses communicate with the jury. Encourage you medical experts to bring props and to teach the jury the mechanism of your client’s injury and the medical consequences of the defendant’s negligence. Pictures, props and/or videos will help keep the jurors’ focused on your case.
Remember that the case is what you talk about the most. Most of your time in closing should be spent on damages. If you have not proven your case by the time you get up and close, then you will most likely not be able to do it now. A summary of the testimony and exhibits that support your liability theory should suffice. The real focus should be on arming your jurors with the information that they need to award your client top dollar. Harms lists and damages charts will help the jury fully understand your client’s injuries and damages.
You should also spend some time walking the jury through the verdict director in your case. Point out the evidence that supports a finding for your client and either ask for a specific dollar amount or suggest some numbers that are supported by the evidence. If you have big special damages, make sure to point that out. You can argue that $100,000 of medical care was provided to the Plaintiff before she was released from the hospital and that she will have a lifetime of problems and issues as a result of the defendant’s negligence.
Do not use medical terms of art. You do not want to speak in terms of bilateral subtrochanteric femur fractures. Instead, just say broken femur or leg. Make it as real as possible. Here is an example:
The nail was driven into the Plaintiff’s femur. Eight screws were used to secure the nail. All of these pieces of metal are currently holding the Plaintiff’s leg together. When it gets cold outside, Plaintiff’s leg becomes numb and it tingles. Show the jury all of the hardware if possible and let them feel each screw and the nail. Show them the x-rays with the nail and screws in place. Make sure to point out that another surgery may be required to remove the hardware or to make adjustments. Lastly, point out that Plaintiff’s leg will never be the same again.
In the end, the goal is to provide the jury with a good understanding of the injuries and damages suffered by your client. The more information the jury has about your client’s injuries the better off your client will be.