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Ten Key Principles For Winning Money Damages Commensurate With Your Client’s Injury by Patrick A. Malone


Patrick A. Malone is co-author of the forthcoming The Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability (Trial Guides 2005). He is a partner at Stein, Mitchell & Mezines in Washington, D.C. He is a member of the Inner Circle of Advocates. Malone represents victims of serious personal injuries against drug manufacturers, hospitals, and others in the medical industry.


How many trials have you had like


this? You fight ferociously over liability. Damages, on the other hand, seem to go in smoothly, almost as an afterthought. The jury returns a verdict for your client, but the amount disappoints both of you. Is this another case of a jury compromis- ing the damages number to avoid a liability deadlock, or has something else happened?


This could be a case where the jury


just didn’t give much thought to damages. Why should they? The lawyers spent 99 percent of the trial fighting over liability. If the jury takes its cue from the lawyers’ priorities, how can we fault them? Consider another scenario. The jury returns a plaintiff’s verdict


with a full


award for lost earnings and medical bills, but next to nothing for non-economic damages. On their way out of the court-


house, some of the jurors explain that they just didn’t get the point of “pain and suf- fering” and thought they had generously rewarded the plaintiff. Is this just a case of skinflint jurors, tort reform infection, or is something else going on, something that might be more in the control of the plaintiff’s lawyer? Low verdicts have a million explanations. But a lot of them relate to factors that we, as plaintiff’s lawyers, can control, or at least influence heavily.


I want to offer


what I believe are ten important principles for winning damages commensurate with the client’s injury. Principle No. 1: Know yourself, and


be yourself. Because you represent seri- ously injured people, you are, first and foremost, a human being who cares about other people. Don’t be afraid to let that show. It should be obvious in the respect


you show your client in court. Your au- thenticity as a human being should also show in the choice of words you use: plain, human terms - not legalities. Law jargon puts a barrier between you and the jury. Emotional congruence is an important principle of persuasive advocacy. If some- one says, “Great to see you” in a flat monotone, you don’t believe them. The words don’t match the tone. If they say, “Hey, great to see YOU!!” that is more persuasive. In trial, your emotions need to match the subject matter. For example, do you get angry in trial? Do you cry in front of the jury? These emotions can be appropriate, but only if their expression is natural and right under the circum- stances. The way to get there is not to go through the motions of acting these emo- tions. You must at all times believe what you feel, and believe what you say. If you are just going through the motions, it will show. This leads to my second key prin- ciple. Principle No. 2: Know your client, and be your client. You must know and understand your client’s cause in a deep, emotionally bonded way, and you must make your client’s cause your own cause. This sincerity, this identity will commu- nicate itself naturally to the jury. This takes time. You must spend many hours with your client. Home visits are a must. Take your own photos at the client’s home. Look for objects that capsulize the change in the client’s life. Tips from the masters: Connect with


the client’s injury. Don Keenan of Atlanta, Georgia always spends a weekend (nights included) at the client’s home before trial, seeing how they live with their injury at home. Dan Cullan of Omaha, Nebraska has rented a wheelchair for a week to see how long he could last in it (not long be- fore cheating), and has put tape over his eyes to see what blindness was like. All these tips are intended to help the


lawyer, as Paul Luvera of Seattle puts it, “crawl into the client’s skin.” Paul, who teaches at the Spence Trial Lawyers Col-


28 Trial Reporter


(Continued on page 30) Fall 2005


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