Presentation of Damages (Continued from page 6)
“conservative” jurors hard evidence on which to make their award and they will do it.
6. Do lay the groundwork for damages in your liability case, and don’t leave damages as an afterthought. When it comes to presenting cases, many attor- neys put on a strong liability case, only to short-circuit their ability to recover damages by not exploring any damage themes until too late in the case. Often, a damage case which might otherwise be successful falls short when the attorney’s exploration of damages consists of the single question − “How has this affected you?” For a damage case to be really effective, the groundwork for damages needs to be laid down during the liability phase of the case, so that when the dam- age portion of the case takes center stage,
there is a predicate on which to award the damages. For instance, suppose you have a
client who is suffering severe, emotional distress because of the loss of her job in the work place. More than just a fi- nancial burden, this client feels the loss of her work “family” with whom she spent almost as much time as her real family. If you want to heighten those damages, make sure that you devote a certain amount of time in the liability phase of the case presenting informa- tion about your client’s close contact with her coworkers. Are there perhaps photographs you can show of an office picnic or function that allows the jury to actually understand how close the client was to her coworkers, or how much she enjoyed her job? These types of evidence will pay off when your client has to explain how devastating the loss of the job was to her. But, it is better to lay out this evidence early, rather than
pulling it out just at the time when you want the jury to see it as an inducement to award damages. I recently tried a case where my jury
focus groups (see brief discussion of use of jury focus groups below) raised the question of whether or not my client was fragile. Many jurors in the focus groups perceived her as being hypersensitive for the purpose of awarding damages. As a result of this feedback, we laid the groundwork in the case for showing the client playing softball at a company pic- nic, loading boxes of sales manuals and burning the midnight oil for her job. All of these items were undoubtedly helpful in presenting a case that my client did not begin her time at the company as a fragile individual, and that her fragil- ity was a direct result of the company’s discriminatory treatment. In another case, a client with epilepsy
(Continued on page 10)
8
Trial Reporter
Spring 2008
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