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Ten Key Principles (Continued from page 28)


lege, also says: “You must be a truth seeker and not a game player. You must be au- thentic, real and an open human being.” And that leads to our third principle.


Principle No. 3: Always tell the truth: about you, your client, and all aspects of the case. Problems don’t go away by ig- noring them. Confront the bad parts of the case honestly and openly with the jury. If you’re afraid the jury will blow some- thing out of proportion or misunderstand something, tell them.


Principle No. 4: Show that the plaintiff is a worthwhile person who needs the jurors’ help. That is the key thing jurors must know about the plaintiff. Here’s an example. (This also relates


back to Principle No. 3.) If the plaintiff denies the seriousness of the injury, let that happen. Have experts explain why “de- nial” is a key coping strategy that helps hold the victim together, but that does not negate the seriousness of the injury. Another important piece of showing the plaintiff’s worthiness for a large dam- ages number is to demonstrate what would happen to the plaintiff if he or she does not receive an adequate award. This can be done in the context of a “life care


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plan.” Don’t assume the jury will “buy into” a plan for future care out of sympa- thy to an obviously hurt client. Each element of the plan must be explained in detail and justified. Tip from the masters: Bob Spohrer of


Jacksonville, Florida emphasizes that an adequate award is not only morally right but is important to the plaintiff’s health and safety. Show through medical wit- nesses the consequences of NOT giving enough money: the safety measures the plaintiff won’t be able to afford, the thera- pies that may have to go unused, the harm to the plaintiff ’s mental and physical health, the risk of further harm that this innocent plaintiff is now exposed to, all because of an inadequate sum. Principle No. 5: Make the jury un- derstand the purpose of money damages is to make the victim whole, or to put the victim in the same position they were in immediately before the injury. From this premise will naturally flow a discus- sion about the importance of making an award for the intangible, non-economic part of the damages. Tips from the masters: Rick Friedman of Anchorage, Alaska stresses this point: The jury must also understand WHY making the victim whole is the goal of the tort system. They need to see how fault and damages are linked. In our sys- tem, if the defendant didn’t cause the injury, he doesn’t pay, no matter how badly hurt. But if he did cause the injury, the law requires that the plaintiff be made whole, because the injury should not have happened. The law is there to help people like the defendant too. The law encour- ages people to follow the rules and behave carefully. When they behave carelessly and someone is hurt, they must pay for all the harm they caused. If they are required to pay for less than all the harm, people will have less incentive to act carefully. Here’s my own tip for how to mount an effective argument that makes vivid the appropriateness of awarding damages for “pain and suffering” in order to “make the plaintiff whole.” I call it the “prospective” approach. You go back, in your argument, to the last time the plaintiff was whole, immediately before the event. Then you look forward from that point, and speak of all that is about to happen to the plain- tiff.


It’s also effective to address this


argument as if you were speaking directly to the injured person: “Here is what is going to happen to you. It will happen as a result of carelessness. It cannot be pre- vented and your life will be changed forever. But you will be fairly paid with a sum of money that will make it right, as


Fall 2005


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