ARGUING DAMAGES – SOME CONCEPTS TO CONSIDER

The objective of a personal injury lawsuit for damages is  primarily the damages. Yet, in my experience, this often is the most difficult part of summation for attorneys. How do you ask for the money I am often asked? We know that there is not one answer to this question and that it all depends upon the advocate as well as the facts of the case. Here is a simple outline of a general approach, but the important fact is the credibility of the advocate and the case issues plus jury impression control the outcome more than summation words. However, the jury is looking for guidance and direction from a credible advocate and you must always give them that guidance. Research has concluded you should suggest a figure for the verdict in every case. The amount of that figure, however, is subject to careful evaluation. In the damage introduction of the case I like to cover some basics by discussing damages in a general advocacy sense. I usuually cover these items:

  1. Reminder of voir dire discussion points: try the case on the basis of no sympathy for either party. Render a verdict for full justice.
  2. Burden of proof: instructions & explanation about the degree of proof required. In that discussion I like them to know we will make a rebuttal argument so it does not come as a suprise when we do so.
  3. Proximate cause explained with examples.
  4. The most important issue: what some of money fairly reasonably and justly is required for a full and proper verdict?
  5. There are two kinds of damages that are very different: ( 1) economic damages and (2) non-– economic damages. There are also two different time periods, past and future. Economic damages relate to the bills and reimbursement to hospitals and doctors and others providing care. Non-economic damages are the most important part of this case because they represent justice and not paying the doctors and  hospitals. The scale has to perfectly balance with money on one side and harm suffered plus to be suffered on the other side. It is the equivalent of an eye for an eye in dollars. That’s what this case is all about.
  6. The non-economic damages involve separate and different factors and involve two time periods past and future:: ( 1) past disability and future disability (2) past mental and physical pain and future  mental and physical pain (3) past loss of the enjoyment of life and future loss of the enjoyment of life.
  7. evaluation in dollars: (1) listing the economic damages with explanation (2) listing the past elements of non-economic damages with dollar figures and  total (3) listing the future elements of non-economic damages with dollar figures.
  8. Comparing dollar evaluations to real-life examples. Explaining reasons why figures are conservative and reasonable.

The rest of the argument deals with general concepts about justice, the reason they are on the  jury and the importance of the case both to them as well as  the community. Here is a simple  outline  of this  part of summation. INTRODUCTION

  • justice is the reason we are here. We do not have the power to cure nor the right to inflict like harm on the defendant. Our system does not involve an eye for an eye or a tooth for tooth. It calls for money to equal the harm done as the only justice this jury can require.
  • We only have one opportunity for justice here. The injured person cannot come back each year and report their situation to a jury for an annual evaluation. One verdict now and forever.
  • To be fair it must be full justice. Not half justice. Not three quarters justice but full justice.

IMPORTANT CASE

  • There is a great and important principle involved here: what is the value we place on the right to pursue happiness without having injury inflicted upon us by the wrongdoing of others?
  • This is an important case because you will set the value of this principle for yourself, the community, and the injured person.

 RARE CHANCE TO DIRECTLY HELP ANOTHER

  • This is a rare chance for us to directly help another person in a specific way. We go to the polls to vote but we do so with hundreds and thousands of other people and are  one vote is simply one among hundreds. Here, however, your vote directly impacts another  person’s life in a very direct way. Ssomeone who is entitled to justice.
  • We will never again have this rare opportunity to touch another human being’s life and impact their future. This is a rare opportunity to exercise enormous power to determine another person’s future. It is a sacred trust the power to create or to destroy.

IT REQUIRES GREAT COURAGE

  • Like all things of importance this will require an enormous amount of courage to do the right thing. The easier course is to duck the responsibility and work of  evaluating the  harm done in  dollars. I am confident you will have the courage to render a verdict that will allow you in the months and years ahead, when perhaps reflecting back you think of this case, you can say to yourselves:” yes I am proud of doing the right thing and full justice in that case.”
  • I know you will have the courage to render a verdict that will allow you to tell your friends and family you participated in establishing a principal about the value of human life.

 A CASE OF STOLEN DREAMS

  • This is a case of stolen dreams and the robbery of a person of what might have been. all of this could have and should have been avoided. What happened here was totally unnecessary.
  • John Greenleaf Whittier wrote in his poem Maud Muller “God pity them both and pity us all, who vainly the dreams of youth recall: for all the sad words of tongue or pen the saddest of these are”  it might have been.”

LOSS OF FREEDOM

  • What has been taken away? The right of freedom has been stolen. He was free independent American who now has lost independence. He has health limitations. He has mobility limitations. He has a loss in his family and social life. He no longer has freedom of choice in all of the areas of life that he had before this tragedy.

LOSS OF DIGNITY

  • There has been a loss of dignity. We all have a self-image and injury changes that picture of who we are. We all have roles in life. and injury changes our role which in turn impacts our pride.

LOSS OF CONTROL OVER LIFE

  • We all have goals and dreams for the future. Injury steals these from us. We are no longer the master of our own ship. We are left in fear of the future instead.
  • Injury changes are life forever. If a simple heading can rock the day of the sun injuries like these wrong one of control and peace of mind

RENDER A VERDICT FOR THE RIGHT REASON

  • No matter how you decide this case it is important that you cast your vote for the right reason. I pray that you will find within yourself the courage to render a  verdict  which has been sanctified by your conscience, ratified by your reason and born of the sincere desire to see that justice has been done. I want you to be able to be proud of your verdict for having done the right thing.
  • Joe,  his family and I have placed our trust in your and we will be here waiting to hear your decision. We  are in your hands. Thank you for your careful attention throughout this trial. Whatever your decision, we are grateful to you for  listening to us.

RALPH WALDO EMERSON & TRIAL LAWYERS

I realize that my most recent posts have departed from my usual offering of practical advice regarding plaintiff trial practice. This post is equally lacking in practical application to trial, but I think worth considering. I’ve been thinking about what are the fundamental qualities of a great trial lawyer and it seems to me that it always starts with who we are, what we believe and what we think. Everything else are learned attributes or techniques. The most important thing we need to do is to know ourselves. That was the teaching of Plato. His pupil Socrates said “the unexamined life is not worth living.” Shakespeare has Polonius giving advice to his son “This above all: to thine own self be true, and it must follow, as the night the day, Thou canst not then be false to any man.” Learning who we really our is fundamental to personal improvement

I also think we should consider some historical ideas about living our lives which impact us as advocates for the harmed and those in need of representation.

For example, Ralph Waldo Emerson, wrote an essay, “Compensation” in which he said each person is compensated in like manner for that which he or she has contributed.  This “law of compensation is also called “the law of cause and effect” because he argued that the entire system of the world is represented in every particle of its parts. Every excess causes a defect and every defect an excess. “For everything you have missed, you have gained something else and for everything you gain, you lose something.”

For Emerson “The dice of God are always loaded. The world looks like a multiplication table or a mathematical equation, which turn it how you will, balances itself.” He believed cause and effect cannot be severed. That meant, he said, “You cannot do wrong without suffering wrong.” On the other hand, love and you shall be loved.” For Emerson give and you shall be given.  Wrong others and you shall receive the same.

Emerson’s law of compensation was that you can never be compensated in the long term for more that you contribute. If you want to increase your compensation, you must increase the value of your contribution.

Closely aligned with Emerson’s ideas was the concept of “the law of attraction” based upon positive mental attitude. Napoleon Hill published two books on this idea, the best known of which is “Think and Grow Rich” published in 1937. He believed in the importance of controlling one’s own thoughts in order to achieve success, because positive thoughts attract positive results. More recently Norman Vincent Peale’s book “The Power of Positive Thinking” promoted the same idea and remains a best seller. The most powerful force we have is what we say to ourselves and believe.

In fact there is research involving groups of people which have tested the impact of positive thinking on the brain. It showed that positive emotions broadened a sense of multiple possibilities and opens the mind to more options. In addition, had demonstrated an enhanced ability to develop resources.

Even in the New Testament we find passages about what has been called “the law of abundance,” that is, the idea that by giving you will receive and the more you give, the more you will have abundance. We read in Luke: “Give, and it will be given to you. A good measure, pressed down, shaken together and running over, will be poured into your lap. For with the measure you use, it will be measured to you.” And in Mathew we read: “Whoever has will be given more, and they will have an abundance. Whoever does not have, even what they have will be taken from them.”

While televangelists like to utilize these passages to promise donors a reward for supporting their cause and motivational speakers promise benefits based upon some of these ideas, there is a genuine benefit from reasonable application of the concepts.

There are hundreds of books dealing with self-improvement and even more “rules” that are advocated for accomplishing it. A few worth considering among a whole lot more include these ideas from Neuro Linguistic Programing principles.

  1. Be truthful and honest. Speak and act with integrity.  Be who you really are & not pretend.
  2. We already possess all the resources we need to succeed and achieve our goals. We just  need to learn how to unlock them
  3. The meaning of communication is not what is said, but what was understood
  4. You are in charge of your mind and therefore your life
  5. When things get difficult, remember: there is no failure, only helpful feedback.
  6. If one person can do something, we can learn to do it too by modeling the  thinking and behavior
  7. The mind and body are part of the same system and one effects the other.
  8. Every behavior comes from a positive intention. Look behind behavior to the intent
  9. The map is not the territory. We don’t respond to the facts, but rather our mental picture of it. We need to revise our mind to the reality of the world as it exists.
  10. People choose what they believe is the best choice. Choices are based upon experience. More  and  better experiences allow for more choices

APOLOGY & ADMISSION OF LIABILITY

Insurance companies advise their insureds  in malpractice situations to apologize to the injured person. That’s because their research indicates that a prompt concession of fault with an apology motivates the injured person to either not assert a claim at all or to be willing to compromise more quickly and easily. They have enough confidence in this idea to lobby legislators to adopt statutes that prohibit the introduction into evidence that apology or admission of fault has been made in such cases. Washington state has such a statute.

As to admissions of  liability and apology, I’ve written about the subject generally in the past. http://plaintifftriallawyertips.com/how-to-admit-you-were-wrong-accept-responsibility

The website www.thejuryexpert.com as recently published an article by Dr.Kevin Boully Ph.D entitled “Mea culpa in the courtroom: apology as a trial strategy.” In it he discusses the effect of a defendant admitting wrongdoing in trial with an apology. While the article generally discusses the concept two particular parts I thought were especially significant. The first was his description of what constitutes a full apology, which he calls “the Four Rs.” They are:

  1. Remorse  “the people of Acme Corporation want Mr. and Mrs. Jones to know they are extremely sorry, and you’ll hear them express their remorse in this trial.”
  2. Responsibility  “The Acme Corporation takes full responsibility for what happened.”
  3. Repair “we want Mr. and Mrs. Jones to know we are willing to make this situation right and to do whatever we can to remedy the damage they have experienced in this case.”
  4. Reform  “the Acme Corporation has already begun to implement changes in its policies, the supervision of its employees, and the procedures in order to prevent a similar outcome happening in the future.”

Let’s examine for the moment these essential parts of a correct apology.  The first thing that occurs to me is the question of admissibility of this outline in an actual trial. After all, the law and the instructions to the jury are replete with admonitions not to allow sympathy to play the role in the jurors decision. The entire idea of an apology involves an appeal for forgiveness as well as sympathy. While the statute or rule may allow a defendant that to admit to liability and thereby, in nonpunitive damage states, exclude evidence of liability, it should not allow the defendant to additionally ask for sympathy. This is particularly true where a defendant has consistently denied liability through extensive discovery depositions only to concede it on the eve of trial. While the existence of the admission may be admissible the rest should not be.

More importantly my reaction to the elements of a perfect apology is that it makes a wonderful outline for cross examination of a corporate representative: “Are you sorry?”  “Do you accept full responsibility for what happened?” “Would you do the same thing again?” What have you done to prevent a similar outcome happening in the future?” In a trial involving in multi national pharmaceutical company I had the opportunity of cross-examining their CEO at trial. His poor demeanor and bad responses on cross examination about these kinds of subjects played an important role in the jurors  impression of the defendant pharmaceutical company in rendering their record size verdict.

The second significant part of this article deals with the reaction when the apology is attempted but not done right. It turns out that a failed apology causes more harm than no apology at all. The article refers to the classic example of Exxon’s botched” apology in the oil spill case. The author says:

” Such a failed apology has many cousins, all of which communicate the message that while your client is saying they are sorry for what happened, they don’t believe it was their fault, they are  not interested in repairing the damage, they aren’t truly interested in fixing the problem, and by the way, they aren’t really sorry.”

The author points out that the badly done apology  “fuels rather than reducing juror anger.”

Note author’s summary I quoted in the previous paragraph dovetails nicely with the idea of using “The Four Rs” in cross-examination  plus the quote in argument to the jury.

There is an old proverb that says “Don’t  strike the emperor unless  you kill him.” You can only hope for a badly done apology by a defendant to the jury because it  causes jury resentment and negative reaction while it opens  the door to effective cross examination and argument. If allowed, it should  also offer opportunities on cross  examination about  each aspect of the requirements for a perfect apology.