killers. When presenting information on automobile damages, avoid present- ing a breakdown of damage that slices up the damage calculation into tiny parts. All of these things can have the effect of “cheapening” you or your client in the eyes of the jury.
11. Don’t “kitchen sink” damages. We all know what is meant by throwing in everything “but the kitchen sink.” When you kitchen sink damages, you appear to be overreaching, which plays directly into jury perceptions about plaintiffs who exaggerate their harm. Focus on the most important damages first, and give small items much less airtime in your presentation. And, if you’re going to incorporate a lengthy list of damages, make sure that each damage on the list is dealt with precisely and thoroughly.
12. Do use the “fund-raising model” to increase damages. Most companies who specialize in development and fund raising understand that donors don’t give money merely because an institu- tion has a need. Rather, donors are more inclined to give money when the institu- tion has a vision for the future. The same can often be said about juries. In many instances, you stand a better chance of winning higher damages if the jurors accept your client’s vision for a positive future. In other words, what does the client hope to do in the future? Will the client use a portion of the damages to re-train for a new profession? What new vocations is the client considering? What evidence do you have to show that the client is serious about moving forward? Jurors often view damages as an “investment” in the future of the plaintiff, so where possible, let the jurors invest in something positive.
13. Don’t compel a jury to make a deci- sion over a “close call” if you can help it. If you have multiple counts in your com- plaint, some may be far easier to prove than others. When a jury resolves close questions against you, it can impact your client’s damages on other meritorious counts. So make sure that you only try
Spring 2008
cases with a clear liability theory and not questionable counts. The same is true with your damages. If you have close questions on causation with respect to certain damages, and far better causa- tion evidence with others, consider only presenting the most clear-cut damages to the jury. If the jury is forced to resolve close questions against you on the more questionable damages, it may indirectly affect their view of your credibility in presenting the more clear-cut ones.
14. Don’t use the terms “pain and suf- fering.” Avoid these terms as they are overused and lead to non specificity in your description of damages. Use other descriptors of various damage categories such as: sleeplessness, loss of enjoyment of life, depression, physical pain, loss of career, etc. I prefer the term “compen- satory damages” to “emotional distress” where possible for the same reason.
15. Do advise your client on the ap- propriate mitigation of damages and develop evidence to show that mitiga- tion to a jury. Regardless of the nature of your client’s injury, it is always ap- propriate to give your client detailed
instructions on how to mitigate dam- ages. The instructions should be clear, and you should follow up with your client on the mitigation of damages as often as possible. Failed or nonexistent attempts to mitigate damages can gut an otherwise good case. When it comes to mitigation of
damages, ask your client to keep ac- curate and daily records of attempts to mitigate damages. If your client is required to take medication on a daily basis to get better, consider helping the client produce a calendar with entries on each day indicating “medication taken − a.m.” or “p.m.” − that the client can check off. Ultimately this calendar can be produced during discovery and then used as an exhibit to demonstrate your client’s interest in staying on track for their recovery. The same would be true of a calendar showing physical-therapy appointments, and other medical- related information. For clients who are seeking work,
advise them to keep track of ads in the paper, and devote a page of notebook paper for each ad they respond to. Un- der each ad, which they can paste on the paper, they can write the follow-up
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Trial Reporter 13
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