Effective Presentation of Damages 25 Helpful Strategies to Implement Right Now by Larry Kaye
As litigators, our goal is to win cases.
But the sweetest liability verdict sours quickly when a damage award is too low. Here is a list of things that you can and should do to increase your chances of higher damage awards that will hold up after trial.
1. Do choose your cases carefully. Al- though this seems like an obvious point, many attorneys do less than a stellar job when it comes to selecting cases. If you want to maximize your damages at trial, start by choosing only cases that you would bring to trial – not merely ones that you feel might allow you to force a settlement. Those “settlement forcers” have a way of becoming the dog cases that will often not settle and lead to defense verdicts. In selecting cases, do a rigorous assessment of the plaintiff ’s case, including a thorough examina- tion of damages and the theory behind them.
2. Do make sure your client will be “worthy” of receiving damages in the eyes of a jury. This means that the cli- ent is credible and genuinely interested in recovering from injury. It means that the client is actually looking for work – if the case involves a termination. It means that the client is not merely litigious, but genuinely injured. It means that the jury will embrace your damage claim and will want to award damages, and not begrudgingly.
3. Do provide a detailed damages questionnaire to your clients, and take a thorough damages history. At the outset of the case, provide a detailed damages questionnaire to your client to complete for you, and take a thorough damages history to ensure you know every possible type of damages your client has suffered. Focus on tangible in- formation from your client to enable you to make that assessment. For instance,
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specific questions about sleep patterns, actual symptoms, episodes of crying and/or thoughts of despair − these are often more helpful than simply asking the client to explain how they have been affected by the defendant’s conduct. Expand this list so you are sure to have asked every question to uncover the information you need. Once you have the information, you can then determine the best way to present it.
4. Don’t devote extensive time in your opening statement to a discussion of damages. When the jurors have not heard the evidence, it will generally be hard to win them over on the issue of damages. Instead, let them know that you will be asking them to “direct that the defendant compensate the plaintiff” for his or her injuries. This gets the jurors away from the concept of think- ing that the damages are a “prize” to be “awarded,” and helps portray damages as just compensation for injury.
5. Don’t listen to the self-fulfilling prophecy about the “conservative jury.” When I was a new attorney in Montgom- ery County, I heard colleagues tell me about how conservative Montgomery County or Maryland federal juries tend- ed to award less damages. Judges told me this as well, usually as a settlement tool. But oftentimes, these pessimistic state- ments become a sort of self-fulfilling prophecy, leading attorneys to give their damages cases short shrift. In fact, actual experience in Montgomery County and in federal court has been quite the oppo- site of the gloom-and-doom predictions that I heard. Prepare every damage case without regard to whether or not a jury will be “conservative.” Give those
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