Maximizing Your Medical Expenses Claim in Your Auto Negligence Case by Kevin J. Finnegan


Economic damages continue to be the


reference figure against which ratios of non-economic damages and case val- ues are estimated by defense attorneys, adjusters and mediators. Perhaps more importantly, juries will often use them as an anchor for determining what to award for non-economic damages. Therefore, one should explore all credible claims for economic damages their client may have, and consider how defense counsel will challenge each claim. The limita- tions of this article do not allow for a discussion of every type of potential economic damages claim which could be potentially brought in an automobile negligence claim (ie. past and future lost income, lost earning capacity, caregiver and life care expenses, loss of household services, etc.),1


but here are some general


suggestions for maximizing damages in your automobile negligence case.


Jury Bias I believe that you can’t discuss the


topic of damages without addressing the issue of jury bias. Those operating under the guise of tort reform have for- ever changed perceptions of lawyers and the civil justice system. The American Association for Justice (AAJ) first began focus grouping and developing The Jury Bias Model ™ in 1994. AAJ Education has spent a considerable amount of time and resources uncovering the types of hostile juror attitudes, and developing a model which can be used to combat it. The five general categories of jury bias are: (1) personal responsibility;


1


For an excellent discussion of making a Loss of Household Services Claim, see Alison D. Kohler’s article in the Fall 2001 volume of the Trial Reporter (available online at the MAJ website, www.marylan- dassociationforjustice.com)


Winter 2009 Trial Reporter


(2) stuff happens; (3) victimization; (4) anti-plaintiff bias; and (5) suspicion. It is not possible to explain each of these bias categories in this lone article but, they must be studied and understood in order to effectively present the trial story and sequence the evidence presented in order to maximize your damages award. A recommended reference would be attending an Overcoming Jury Bias


dant. It should be remembered that if the jury does not perceive the plaintiff ’s conduct as “normal” (ie. suspicion bias), every part of your case will suf- fer including the most straightforward pieces of your damages claim. Moreover, the evidence presented must show the plaintiff to be personally responsible (ie. personal responsibility bias) in the choices they have made since he or she


Those operating under the guise of tort reform have for- ever changed perceptions of lawyers and the civil justice system.


program and/or buying the tape sets at www.justice.org. A case must be tried on both liability


and damages with the understanding that prospective jurors will apply a high- er standard of personal responsibility to the plaintiff than they will to the defen-


was injured. Strategically, look at the client first to determine what aspect of their conduct might raise suspicion with the jurors and mistrust of the plaintiff and the case generally. Develop check- lists of everything in the plaintiff ’s life that is consistent with acting responsibly.


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