Presentation of Damages (Continued from page 10)
Q: What are you thinking then? A: That I am going to die.
It is easy to see how the frame-of-
reference examination creates more immediacy in the injury and helps the jurors to understand better the terror felt by your client. It forces them to imagine that they are in the car with your client, and evaluate their own reactions to the unfolding chain of events. These frame-of-reference exami-
nations can work in any case. In my employment cases, I will often switch to frame-of-reference examinations to have my clients explain how they feel at the moment they are being terminated. It is amazing how powerful slowing an examination down to allow the client to describe minute by minute how they feel as they are being escorted out of their place of employment, or having to drive home to face their family and let them know that they were fired. Frame- of-reference examinations feel more immediate to the client as well, and you
will often heighten your damages case when the real emotions associated with those events are allowed to be exposed. A client may become spontaneously tearful or show other signs to the jury which will enable the jury to justify a higher damage award. The key to us- ing these types of examinations is to alert your client ahead of time about the fact that you may be asking them to recount certain things in the present tense. But avoid the tendency of asking all the present-tense questions to your client in a practice session, because that may blunt the effect of exposing the immediacy of the damages on the stand. As long as your client understands how to address the questions in the present tense, this will be an effective tool.
8. Do use anecdotal evidence from credible witnesses. Sometimes, an- ecdotal evidence can be the strongest evidence in a case. In one case, I used a supermarket checker as a witness to show the weekly change in demeanor of my client over a year-long period. My client in this case always went to the same checker on Saturday when she
shopped, and the checker’s experience over the long term allowed her to see the growing unhappiness in my client, which was manifest throughout the time they spent together. Now obviously, the cashier did not know to what to attribute the change in demeanor, but other wit- nesses helped make clear that it was due to the defendant’s conduct. In another instance, I used a next-
door neighbor to comment on the difference in the client’s behavior. The client had typically been an avid gar- dener, which was her favorite pastime, as witnessed by the neighbor. As the events in the case unfolded, however, the neighbor saw the client less-and- less frequently out in her garden, and noticed that the garden – which had been so well attended – began to die from lack of attention. This garden be- came an effective metaphor in the jury’s mind for my client’s downward spiral as she withdrew from many activities as a result of her emotional distress. The key to presenting this type of evidence is to have witnesses who have had the ability to observe the client and report accurately on the changes in the client’s conduct or demeanor.
9. Do try to draw on damage witnesses from all facets of your client’s life. When I prepare a damages case, I try to find at least one damages witness from each aspect of my client’s life. In a typi- cal case, I might use one co-worker, one family member, one community mem- ber or neighbor, one close, telephone friend, and perhaps a member of my client’s church. It is important to create a complete picture of damages through witnesses, and using witnesses from many aspects of the client’s life enables you to show how the client’s entire life was affected.
10. Don’t “nickel and dime” damages. When presenting damages to a jury, don’t “nickel and dime.” If you are pre- senting a claim for lost wages in the tens or hundreds of thousands of dollars, think twice before stopping to put on evidence of a $20 prescription for pain-
12 Trial Reporter Spring 2008
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