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information such as “called June 5 − 3:30 p.m. − left message” or “sent resume and cover letter.” With a page devoted to each individual attempt to find a job, you’ll find that the paper stack becomes large, and is an impressive exhibit to show in its entirety to document your client’s efforts at securing employment. Additionally, if your client sends out cover letters, with resumes attached, have your client keep a copy of each individual item sent as part of the job search, even if the cover letter changes only in its addressee. The importance of maintaining a copy each time is to document – through tangible visible paperwork – your client’s efforts to mitigate. When you add these docu- ments together in your jury evidence, the stack becomes an important tool in your client’s efforts to appear credible in their mitigation.


16. Do find ways of explaining physi- cal pain. If you have a case in which the client suffered actual physical pain, try helping your client find ways of describing pain which will be accessible to jurors. For instance, if your client is forced to take narcotic medication for pain, consider having a pain expert discuss other pain which would be typi- cally controlled by that level of narcotic. “That level of narcotic would typically be prescribed to make comfortable an individual in pain from three root canals.” Since most jurors have expe- rienced certain types of pain, such as dental pain, or broken bones, often using a more accessible analogy is helpful to jurors assessing damages.


17. Do complete answers to interroga- tories on damages. Avoid interrogatory answers which state that “damages will be calculated by my economist,” or an- swers which treat damages in a cursory way, by describing non-specific emo- tional distress. Anticipate that these answers may be put in front of the jury who will assess whether your client devoted sufficient space to describing the damages.


18. Do amplify discussions of dam- ages during your client’s deposition.


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Many attorneys direct their client to avoid giving too much information at a deposition. This attempt to shorten testimony may not ultimately be help- ful in presenting damages. Before you go into the deposition, have a lengthy list of all of your client’s damages, and if the client is asked any question about damages, and omits certain information about their injuries, be sure to bring it out while the deposition is going on. Do not count on the “you never asked me that question,” as a defense to why the information was not provided. A judge who believes that your client omitted important damage information might preclude you from presenting it.


19. Do consider putting your client on as the last witness or nearly the last witness. If you have strong damages evidence from other witnesses, putting your client on last or nearly last al- lows your client to “corroborate” other disinterested, third-party accounts of their damages. A jury who has already heard about the damages will be far less skeptical of your client, and it may not be necessary for your client to spend so much time describing the damages at length. The presentation comes off as more understated, and enhances your client’s credibility.


20. Do attempt to drive away oppos- ing psychiatric and damage experts by taking their discovery. In the nearly 18 years I have been practicing law, I have never had an opposing psychiatric expert testify at one of my trials. I at- tribute this to our successful attempts to call into question the scientific basis for the expert’s opinion during discov- ery. Most attorneys are content to ask routine questions about whether experts work primarily for defendants or plain- tiffs etc., and rarely go into the science, meeting the expert head on. But, if an expert is supposed to have performed an IME on your client, make the experts support their opinion by asking them detailed questions about the methods, notes, and criteria for their opinion. Psychiatric experts are often extremely sloppy in their preparation. By asking


Trial Reporter


for discovery from these experts, you can often expose their lack of prepara- tion, lack of supporting notes, inability to meet the criteria for their alternative diagnosis and much more. In order to do this effectively though, you have to become a mini expert yourself. When you have damaged an expert badly enough at a deposition, they will often not appear at trial. This holds true for virtually any damage expert who is slop- py in their preparation. Then, be sure during your opening statement to make reference to the fact that the defendants had certain experts, and name them, so that later on, you can ask the jury “where were the experts you heard about during the opening statement?”


21. Don’t let judges pressure you to limit your damage witnesses because of the other side’s complaint that such testimony is “cumulative.” In every in- stance where I have put the time into a substantial damages case, judges seem to want to pressure me not to call damages witnesses. As long as the witnesses will discuss different anecdotal incidents, or come from different opportunities to observe your client, you should be able to resist the “cumulative evidence” trap.


22. Do maintain a separate line on the verdict sheet for damages associ- ated with each separate liability count. Courts often want to include a single line for damages comprising the damages for all of the collective liability counts. Resist any attempt to craft the verdict sheet this way. In the event that even a single count on which you have pre- vailed is reversed, it will be impossible to say what damages are attributable to the other non-reversed counts, and the entire trial may have to be done over. In the verdict sheet, include the instruction that damages for each count are separate and different from the other counts. This will prevent the jury from becom- ing confused and awarding the same pot of money for each count.


23. Do let jurors know that the papers showing damages you are calculating during your closing argument will not


Spring 2008


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