The Secret Weapon – The Victim, Widow/Widower and the Family


Many authors today espouse the use


of attention-grabbing technology to keep jurors interested. While we do not shy away from technology, we believe that the single most important aspect of the plaintiff ’s trial is the testimony that comes from the plaintiff and his family. This is especially true when non- economic damages represent the bulk of the value of the case. The point is proven by approaching


the client as if he/she were your parent or grandparent. For example, one of the au- thors’ grandfathers recently passed away at age 84. He was a World War II veteran, born in 1919. He had lived through 16 presidents, raised 5 children and had 18 grandchildren. In recent years, he began to talk about what he had seen at the Battle of the Bulge (something he refused to discuss in earlier years). To say that the stories that he told were engrossing does not do them justice. We would sit for hours over a cup of coffee (not Starbucks, only Maxwell House for him!) and he would talk about his buddies -- who, for some reason, all had great nicknames like Red, Boulder and Stretch -- and what they had endured during those horrific days. What’s the point? Have we lost track of


the purpose of this article? No. The point is that, while the author, and likely many jurors, has seen numerous World War II movies, none begin to even approach the depth, the color, the conviction and the emotion with which “Pop” could tell the story. Storytelling is a lost art in our society, an unfortunate byproduct of the all of the wonderful technology that we have developed. But it is an art that many elderly clients still possess – and it is one of our secret weapons. Technology will never be able to tell


the tale of a life shared, and now shat- tered, better than the human voice. Going back to our case, and in light of what we learned on the very first day we met the widower, we started his testi- mony with the very first date he went on


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with his wife as teenagers in Columbia. He described how he serenaded her on horseback in the middle of the night (another lost art!) for weeks before their engagement. He described their dream of emigrating to the U.S., and how they arrived with nothing in their pockets. He testified that he and his wife watched “I Love Lucy” to help them learn English. He then explained, in detail, how his wife did everything for him (as is generally


the [expert] may only be asked to evaluate the present value of a par- tial substitute for the lost mother, i.e., a maid who works eight hours per day, five days per week. To this economic projection the jury must add the elements of economic loss not evaluated by the [expert], i.e., the value of the mother’s services that no maid can ever perform, as well as those services rendered by a


Storytelling is a lost art in our society, an unfortunate by- product of the all of the wonderful technology that we have developed. But it is an art that many elderly clients still possess – and it is one of our secret weapons.


more true in elderly couples than it is in marriages today), so that he could focus on his medical practice. And he told the story with a loving, yet forlorn, twinkle in his eyes even though those eyes no longer provided him sight. Was this testimony relevant? Abso-


lutely. In a wrongful-death case, the jury is entitled to learn about the relationship that the couple had in awarding both economic and non-economic damages. As the Court of Special Appeals has noted in a wrongful-death case regard- ing a deceased spouse, “evidence of the [couple’s] close and loving relationship before [the decedent’s death] was obvi- ously essential to prove her great loss.” See Eagle-Picher Industries v. Balbos, 578 A.2d 228 (Md. Ct. Spec. App. 1990), aff ’d in part, 604 A.2d 445 (Md. 1992). Moreover, the jury is not going to think fondly of a defense counsel who at- tempts to cut short the elderly client’s one chance to tell the story. And it is not just the widow whose


story matters; it is the family members too. Although the expert witness may well be crucial to proving some aspect of damages, the case law is clear that the jury is free to add to the number testified to by the expert from other evidence. As has been recognized in Maryland Tort Damages, Shadoan, et al. (editors): In the case of the deceased mother,


Trial Reporter


mother before 9:00 a.m., after 5:00 p.m., and over the weekend. In some cases, this testimony can come


from other members of the family. This is often the case when the elderly client cannot talk about uncomfortable losses. Someone needs to bring the reality of the loss home to the jury. For example, can the client walk to the bathroom and turn the water on himself? Is the widow with the beginnings of Alzheimer’s going to explain that the husband would have helped her dress in the morning? Often the answer is … not readily, as theirs is a proud, self-sufficient generation. In our case, the client’s granddaughter told us that she now cuts her grandfather’s toe- nails and his hair, that she picks out outfits that match because he is a formal, proud man who still wears a tie almost every day, and that she does the cooking because he enjoys great meals and, without her, he would be limited to microwaveable food. Our client did not willingly admit these facts because they were embarrassing to him. His granddaughter explained these additional losses to the jury in a way in which all could relate.


Proving Liability Although not the premise of this ar-


ticle and, thus, not explored in detail, we would be remiss in not reminding that


Summer 2007


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