Everyone has their  own idea about how to prepare for damages in our cases and how to conceive of damage arguments. Here’s my general viewpoint of  how I approach damages generally.


The first step is to think about the case without any limiting fears or conditions. Rid your mind and your thinking about other limiting damage verdicts or outcomes in other cases. Those case outcomes were determined by the lawyers, the facts and the clients in those cases. This is a new case with you as the plaintiff attorney presented in a new way.

If you allow your mind to think about the outcomes in other cases you are putting a limit on the true potential verdict in your case. Don’t focus on or anchor in your mind negative statements or thoughts about limited verdict ranges, nor allow the information to remain in your thinking. You have to absolutely disengage from limited results of other lawyers in these cases.


You must get to know your client and their situation as much as you possibly can. You then need imagine life with their injuries now and into the future. For example, in a child injury case of shoulder dystocia, spend time learning and watching the impact of injury. Think about all the daily activities of this child at this point in their life: eating, dressing, running, playing, swinging on a swing (you hold the rope with two hands) etc.

Now imagine the first year of school and each of the daily activities that involves. How willthe injuries impact the child? What about meeting new children for the first time, school activities, play ground activities, carrying books or lunch pail etc?

Next imagine advanced grades as well as the changes as they become a teenager and college student. Think about what is important to a young man or a teenager of dating age with this Injury. What about marrying, having children, and growing old. Think about the impact of this injury not in some clinical medical way but entirely through the eyes of this child and her personal experiences childhood to old age.

It’s not the medicine, nor the medical text’s literature about the injury and clinical evaluations. We don’t care about the assurances of medical evaluation. What we care about is how this impacts this child in the real world, the world they will live in. How it impacts the child personally, socially, mentally for their entire life – not just now, but in all the years to come.

This process is form of role reversal from psychodrama concepts. Rid your mind of lawyer considerations, legal proof, medical correctness, intellectual issues and think like this child and the jurors listening to the practical consequences of the injury. Only the defense lawyer and judge are focused on legal issues and clinical opinions. The jury wants to know what this really means on a personal level and they are the ones who vote, not the judge or defense lawyer.

Be prepared to explain through the child’s perspective how at each stage of life this injury impacts them in a practical every day way. Describe it in a way that you feel it through role reversal.


I suspect focus studies would identify an issue that “time heals all wounds” and the child will adjust to the injury. There will be attitudes that the child is lucky it happened as a child because over time they will get used to it. Other jurors might feel there are lots of veterans  who have worse injuries and they get along “just fine.”


Deal with all of the negative attitudes in jury selection and opening. Face the issues head on. Be ready with examples. For example, do the jurors really think a person with an ugly birth mark on their face gets used to it over time when every new meeting of someone else 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.

Remember, the damages are in what it does to the person’s self image and from a mental standpoint. This is the very area no doctor can measure and no test can validate.

My personal view is that an injury of the arm to this extent is huge because it isn’t an amputation where a prosthesis is substituted that looks like an arm. It is flag that flops around with her body for her whole life. It never goes away.


So, this is the way I usually approach damages. I keep ongoing notes of ideas that occur to me. I spend time thinking about it. I am alert for anything I read or see that impacts it. I look for people who might give me ideas. What I don’t do is pay any attention to other cases and ignore all the intellectual issues that only lawyers and judges care about. I put myself (role reversal again) in the jury box and try to think the way they would.

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