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makes citizens feel good to do the right thing for a segment of society that we all know deserves our attention.


Putting It All Together The final question is one of strategy.


How does one present this very im- portant case to the jury and keep them effectively engaged? Obviously, this will vary from lawyer to lawyer, and from case to case. There is no one right answer. But there are several concerns that are likely to arise in every case where an elderly client is involved. One concern is the client and whether


they are able to sit through hours of testimony. Do not lose site of this im- portant issue. The jury wants to know who they are being asked to award all of this money too. Is the client attentive? Can he/she sit for many hours at a time? Is the client comfortable? A jury trial is a frightening prospect for anyone not familiar with the system. Likewise, the jury wants to know that


you care about the client; that this is not just another case for you. Do you ignore the client while presenting the evidence? Do you take the time to explain to the client what the process is? Do you keep the client’s water glass full? These may sound like minor issues, but you would be amazed how intently jurors are study- ing this body language to determine the relationship you have with your elderly client. How can the jury respect their elders, if you do not? In our case, which was a complex


medical-malpractice case involving six doctor defendants, we knew we had a magnificent client and that we had to humanize him. We began the trial with testimony from the widower’s son, also a physician. He introduced the jury to the family and gave an overview of his parents’ lives and their relationship. Af- ter this, we moved into the difficult and complex liability issues. We focused on that for several days, but interspersed the medical testimony with additional “dam- ages” testimony -- both economic and non-economic -- from the granddaugh- ter, and from the other adult children.


52


We also put on an economic expert


regarding the lost economic damages and explained it in a way that the jury was able to use that testimony as a framework. Because Maryland allows a per diem argument (see Eastern Shore PSC v. Cor- bett, 177, A.2d 701 (Md. 1961)), you can use the economist’s numbers as a mini- mum starting point to give the jury the tools it needs to arrive at a generous figure for non-economic losses. For example, if one computes pain and suffering, or grief, at the same modest rate of a housekeeper, the loss is valued at over $600,000 for the next 10 years; for just 12 hours a day. The jury has the right to use its own common sense to decide not only the amount of non-economic damages, but also the actual number of hours per day that the wife would be expected to provide future services and to determine the appropriate hourly costs of those services, based on the evidence presented. Our last witness at trial was our sev-


enty-nine-year-old, distinguished, blind physician who had never turned away a patient for want of insurance or money and who remembered the day of the week that he had met his wife a half century earlier. This has several advantages. First, it brought the case to a poignant close, ending how it began – talking about his loss. Second, the client had grown more acclimated to the courtroom surround- ings several days into the trial and, thus, was more relaxed. Once on the witness stand, we let him tell his story at his own pace, slowing down when necessary, speeding up at other times, not focus- ing so much on the tremendous pain of losing his wife (that was evident), but focusing more on what his life is like now without her in it. You could hear a pin drop . . . it was as if his wife were present. Just some poignant examples: Q: Tell us why you gave [your wife], after knowing her for two days, why you gave her your ring.


A: Because I fell in love since the first time I saw her.


… A: I serenaded her, so the serenade usually we got together musi-


Trial Reporter


cians that play guitar. This was around between 2 or 3 o’clock, after midnight, I did this once a month, every 4th


of each month I gave the serenade.


Q: What did the neighbors think?


A: Oh, the neighbors enjoyed listening to the music. I had no problem.


… A: I lost, when my wife died. I lost like 80 percent of my life. She was everything for me. She was doing everything for me.


By the end, even though he was not a


very outwardly emotional man, virtually every person in the courtroom was in tears. The result? A $6.4 million dollar ver-


dict.


Conclusion Cases involving damages to elderly


clients are challenging. The economic constraints of our practices often make us pass on these cases – too quickly. In our view, however, a creative and compassionate approach, thorough understanding of the law, and intense pre-trial focus on damages makes these cases uniquely rewarding. n


About the Authors


Jonathan Gowen graduated from Catholic University Law School in 2007 and was a law clerk at Bruce J. Klores & Associates.


Bruce J. Klores is the 1998 DC TLA Trial Lawyer of the Year. He is a former adjunct professor of law. He has chaired numer- ous bar committees and has lectured and written extensively in the fields of trial advocacy and medical malpractice. He has been listed in The Best Lawyers in America for over ten years.


Scott M. Perry is a trial attorney at Bruce J. Klores & Associates. He is a 1997 graduate of Catholic University Law School, where he was a Law Review Editor. Associates.


Summer 2007


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