if it had never happened.” Another approach that can be woven
into the “prospective” argument is to talk about a life-altering injury as a new job for the plaintiff, a job they didn’t apply for, didn’t want, and now cannot escape. What is fair payment for a lifetime on this job without holidays, days off, vacation or retirement? 1 Principle No. 6: Embrace money damages as a worthy outcome. Never apologize for asking for money. Money damages are a civilized society’s way of righting wrongs. Without them, we would be fighting duels and gouging out an eye for an eye. If the defense lawyer denigrates the case as being “only about money,” this gives you an even better opening to defend our civil justice system. Yes, it’s true that money can’t restore a plaintiff ’s health, or bring back a deceased love one, but it can sure go a long way toward bringing justice to an unfair loss. Principle No. 7: Establish liability
first. Then talk about injuries. Then talk about the damages that resulted from those injuries. This applies to the order of an opening statement: talk about what the defendant did wrong first, then the harm it caused, then the damages that flowed from that harm. This also applies to the order of witnesses at trial. The jury must understand why you are talking about injuries, not to gain undue sympa- thy, but to right a wrong. If you begin your opening statement in a wrongful death case talking about what a wonder- ful guy the decedent was and how close he was to his wife and children, the jury may mentally turn you off, concluding that you are just trying to win their sym- pathy. But if they understand first why the decedent’s bond with his family is le- gally relevant to the decision they must make, they are more likely to listen to you with an open mind. Principle No. 8: Spend a lot of time talking about the injuries and damages: in opening, closing, and everything be- tween. Too many lawyers exhaust themselves fighting liability and assume that, because the injuries and damages are less in dispute, the jury will figure out the right thing to do. Spending little time on damages communicates an implicit mes- sage that they’re not very important.
1
If you want to read a sample of how I made these two arguments in a real case, email me at
pmalone@steinmitchell.com, and I will send you a transcript of a case I tried in Montgomery County recently.
Fall 2005
Caveat: Do not start talking about large numbers until you have conditioned the jury to see how badly hurt your client is. The jury must understand the injuries and harms first. Principle No. 9: Explain the three basic types of damages in terms that fo- cus on the jury’s role as fixing, helping and making up for losses. Damages can be re-categorized as three types: “Fixing damages,” “coping damages,” and “justice damages.” (I owe this idea to jury con- sultant David Ball.) a. Fixing damages. “Fix what can be fixed.” Medical bills can be paid. Lost wages can be made up for. Once these are fully paid, they are fixed.
b. Coping damages. “Help what can be helped (but can’t be completely fixed).” Therapies, equipment, and anything else to help cope with the injury.
c. Justice damages. “Make up for what cannot be fixed or helped.” Rebal- ance the plaintiff’s life, so he or she is no less worse off after the injury than before.
Use the jury instructions to explain and argue for each element of damages that applies to the case. The instructions rep- resent what the law requires for justice in each case. However, discuss each element of damages in human terms. Avoid “pain
and suffering,” an overused term derided by tort reformers. Principle No. 10: Be wary of overex- posing the plaintiff. A plaintiff ’s testimony should be as brief as possible to establish any essential element that only the plaintiff can establish. Consider hav- ing the plaintiff leave the courtroom for all or most of the rest of the trial. The plaintiff should especially be absent from court when witnesses are discussing the plaintiff’s disabilities and limitations. You could look cruel, or at least insensitive, if you have your client sit through some of this testimony. Plus, the plaintiff’s con- stant presence in the courtroom can dissipate the dramatic impact that their injury should have on the jury. Caveat: The plaintiff’s absence from the courtroom MUST always be explained to the jury. You will have natural opportu- nities to do this in opening and closing statements, as well as in expert testimony. Conclusion: Can I guarantee you will never be disappointed again with a jury’s number if you follow these ten principles? Of course not. But I think I can say with confidence that lawyers who systemati- cally pay attention to and follow these ten simple ideas will do much better at win- ning justice for our clients’ causes. And that’s the heart of what it means to be a trial lawyer.
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