without a strong and prepared liability presentation, all can be lost. Built into the initial interviews should be questions designed to determine if the busy doc- tors blew the family off because of age, or were patronizing, cold or dismissive. No one wants their parents treated like that – and we all know it happens. As the case progresses, we ask ourselves if we are favoring liability over damages. If the answer is “yes,” then we are not doing the best job we can for the client. By focusing too much on liability, we
set the stage for nominal damages. No matter how strong liability is, we never take the view that it will “prove itself.” The same must be said for our approach to damages. It is no secret that jurors not only need to be persuaded that there was fault, but that their damages delibera- tions are often influenced by the quality of, or degree of, fault.
Why Are These Cases Important?
There are many valid answers to this
question. We owe a debt of gratitude to the “Great-
est Generation” -- the men and women who saved our country from tyranny and worked hard to allow their sons and daughters –us – to thrive. We owe it to them to provide them the same level of legal ser- vices as others receive. It simply should not be the case, as a matter of general morality, that the elderly get less attention than the injured child’s case simply because the injured child will live longer. Second, in states with damages caps
such as Maryland, it is beyond dispute that the law treats the elderly unfairly. Caps on non-economic damages neces- sarily have a greater effect on those who are no longer in the income-earning curve of life. Why is the forty-year-old insurance executive for whom a jury awards $2,000,000 in economic losses allowed to recover the entire amount, while the elderly widow who is awarded $2,000,000 in non-economic damages only can collect $650,000? Is this the way we respect our elders? As one author has aptly stated, “[n]on-economic loss damages, no less than economic loss damages, are the tort system’s way of signaling what our society values and deems worth protecting.”1
Unfortunately, constitutional chal-
lenges regarding the discriminatory effects of caps have been largely unsuc- cessful, and Maryland’s Court of Appeals has held that statutes capping damages in personal injury cases do not violate the due process clause of the Maryland Constitution. See Murphy v. Edmonds, 601 A.2d 102 (Md. 1992). Finally, although money damages can
never replace the value of a longtime spouse, it is well known that bankruptcy filings are now rampant among older people, and that retirees greatly fear running out of money and becoming a burden on their family as they age. A significant damage award can help alleviate that concern and allow the el- derly widow/widower to begin to focus on his/her Golden Years. Though these clients will never be the same, any mea- sure of comfort that we can bring them is a success. It makes us feel good, and it
1
Lucinda M. Finley, The Future of Tort Reform: Reforming The Remedy, Rebalanc- ing The Scales: The Hidden Victims of Tort Reform: Women, Children and the Elderly, 53 Emory L.J. 1263 (Summer 2004).
Summer 2007
Trial Reporter
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