I was asked to explain how I would go about deciding the right way to approach damages in a case involving a child who suffered shoulder dystocia at birth. Here is a rough summary of my process. Here is what  I told the lawyer. While this is my viewpoint, Perhaps it may stimulate some  ideas for you

Rid your mind and your thinking right now about other verdicts in cases like this. Your case is not controlled by the results of some other lawyer in some other case. The only limitation on damages is your subjective thinking. You have to absolutely disengage from the efforts of other lawyers in these cases. Your evaluation must be about your case and the issues in this particular case without regard to other settlements or verdicts. There is no standard range of values. Other verdicts and settlements are only valid until someone gets a larger one. 

Start with the now situation. What are the daily activities of this person – eating, dressing, running, playing, working, walking etc. Spend real time watching & learning. Now move ahead in time and repeat the process.  What will this mean in the future. Think about it year by year. Think about the impact of this injury not in some clinical medical way but entirely through the eyes of this client and her personal experiences. We don’t care about the medicine, nor the medical text’s regarding the injury.

We don’t care about the medical evaluation. What we care about is how this impacts her personally, socially, mentally for her entire life – on a personal level involving practically every day activities every person on the jury will understand. This is a form of psycho drama because it involves total role reversal with the child at different periods in her life. Rid your mind of lawyer considerations, legal proof, medical correctness, intellectual issues and think like this person’s outlook as well as the view of the jurors listening. Only the defense lawyer and the judge care about the other legal issues and they don’t vote on the verdict. We really don’t care about clinical considerations of measurement of injury or medications. What we care about is how this impacts this client on a daily basis in their daily life activities. 

Be prepared to explain through the client’s perspective how at each stage of life this injury impacts her in a practical every day way. Live it in a way that you feel it through role reversal. I suspect focus studies would identify negative issues like:  “time heals all wounds” and she will adjust to it;over time she will get used to it; lots of veterans have worse injuries and they get along. Deal with these in jury selection and opening  and generate discussion:

Do the jurors really think a person with an disabling injury gets used to it over time when every new meeting of someone else and every day’s activity is a new challenge? They might learn to put on a good face, but deep inside it is an open wound. They might learn to get around the injury from a functional standpoint – dressing etc, but they never learn to get around it from a mental standpoint and that’s where the damages are. The damages are not in physical limitations. The jurors will believe she will adjust and learn to get around those. The damages are in what it does to her from a self image and mental standpoint. The very area no doctor can measure and no test can validate.

The key to evaluation of damages is to fully and completely understand, identify with and feel the impact of injury on this particular person. Not as an observer looking on but as the person themselves, through their eyes, their viewpoint. Even if the injured person is not dealing with it as others would expect, you need to understand that and the reason why because that is this person’s reality. You need to fully appreciate the impact of injury in a personal way. Not as a clinical analysis, but as a human being living inside this person and  through their eyes and emotions. Your subjective attitude is the only limitation on damage evaluation. Your viewpoint is the limiting factor. You cannot ask for money which you are not prepared to explain fully from the client’s viewpoint and which you fully believe is fair and reasonable. A failure to believe and explain results in the jury seeing you as a greedy lawyer. Obviously, the damage evaluation will be impacted by the liability evaluation and it is a comparison of the two that results in accurate verdict evaluations.

The evaluation of liability depends upon the accuracy of your analysis of the underlying issue or issues in the case. Cases are driven by liability factors. However, lawyers are the least qualified persons to evaluate these issues because they approach it from a legal standpoint. Their thinking is influenced by legal issues in the case, when, in fact, other, emotional issues trump the law. Focus studies are the only way to obtain objective evaluations of the case issues. Non legal issues are always trumped by issues related to deeply held values and emotional reaction by jurors. 


  1. Thank you. That was an incredibly well articulated approach to reviewing, expressing and proving damages. I appreciate your posts very much. As a younger attorney there are few candid assessments of the practice and its rare to find tangible insights on trial work. Thank you for sharing and taking the time to write your blog. Your posts have improved my own practice and helped me think about the law, the trial and the “truth” in different, more vivid ways.

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