Develop facts to show the plaintiff is a fighter, self-reliant and self-disciplined. The bottom line is that the plaintiff ’s story must be consistent
with jurors life experiences to be believable. For example, if the plaintiff does not have a reasonable explanation for go- ing to a health care provider recommended by their lawyer, medical expenses claim is in serious jeopardy. Likewise, if the jury doesn’t believe the plaintiff was personally responsible in exploring any reasonable accommodations at their place of employment in an effort to get back to work, lost wage claim will likewise be in peril. Understanding the biases the jury will have against the plain-
tiff ’s attorney and their client before the trial begins is critical, and must be considered with every step of the presentation of the evidence.
New Terminology One of the most import books out there for the plaintiff ’s
lawyer is David Ball On Damages: The Essential Update. As a trial attroney, this cannot be a book to be read later or “get around to” reading someday. It will change the way a case is tried. Ball teaches that one can no longer try a case and ask for
damages for “pain and suffering.” Those are overused buzz words of the tort-reformers. It is a gift to the defense. With regard to economic damages specifically, Ball spends a signifi-
cant amount of time in his book teaching how to effectively communicate to juries the necessity for awarding economic damages. The framework Ball advocates is simple. First, it must be
explained to the jury that they will be asked to determine and value the degree of harms and losses suffered by the plaintiff. The term non-economic damages is useless according to Ball. Second, one must address the jury and define their job to them as being: “to fix what can be fixed, to help what can be helped, and to make up for what cannot be fixed or helped.” In other words, when addressing economic damages in a typi- cal automobile case, one may ask the jury to fix the financial harms and losses of the plaintiff by restoring them, financially, to their position before the collision by providing an award for past medical expenses and lost income. One may ask the jury to help what can be helped by providing additional money for future physical therapy which the plaintiff ’s treating doctor or physical therapy expert testifies is necessary to maintain a certain level of function, or to help fix the pain by providing money for a future surgery. Ball spends a significant amount of time suggesting how to
persuade the jury of the worthwhileness of the money they are being asked to provide to fix, to help or to make up for what cannot be fixed or helped. It is a “must read” for any plaintiff ’s lawyer. David Ball on Damages can be found online with a simple Google search.
Past Medical Expenses Asking the jury to make the plaintiff whole for their in-
curred medical expenses is often a straightforward task. The elementary requirements of proof are: (1) proof of the fact of past loss; (2) proof of the causal linkage between the past loss and the tortfeasor’s misconduct; and (3) proof of the reason- able value of each existing or anticipated loss.2
plaintiff ’s attorneys frequently have the experience of putting on the required expert testimony, moving the (redacted) bills into evidence, addressing the bills in summation and then as- suming one is at home base on that issue. At which point the bills get cut by the jury. The most common areas of attack for the defense is the
suspicion bias and personal responsibility bias. If vulnerable, the defense will attack the doctor and argue the medical care was attorney directed and/or the charges or medical care was excessive.
If there are “gaps” in care, the defense will argue the
plaintiff was not personally responsible and did not mitigate their damages. As a consequence, the defense argues, the medi- cal bills are inflated (ie. for coming to court and asking the jury for money). The defense will ask the jury to use their common
2
The Maryland cases on the foundation requirements of reasonable- ness and necessity for proving past medical expenses are Wolf v. Levitt & Sons, Inc., 267 Md. 623, 298 A.2d 374 (1973), and Kujawa v. Baltimore Transit Company, 224 Md. 194, 167 2.2d 96 (1961).
10 Trial Reporter Winter 2009
Unfortunately,
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