Excerpted from Insurance Settlements
By Ronald V. Miller
Economic damages are subjects of rather precise calculation. On the other hand, it takes immense skill, imagination, and sensitivity to prove pain and suffering, so-called non-economic or general damages. In most cases, proof of these elements is by far the key factor in obtaining a substantial economic recovery.
You must listen, really listen, to your client, his friends, family, physicians, and witnesses. You must prepare, shape and mold what they tell you and what you perceive. You must develop a story that will gain the attention and empathy of the listener. Here are some suggestions for how you can build that story and present it sympathetically and convincingly to a jury.
1. Start with your opening statement.
In your opening statement, begin to condition the jury to award substantial money for pain and suffering. The only thing the jury can do to help your client is to award money damages. You cannot hide from this. Don’t be embarrassed to let the jury know that you will be asking for money, and a lot of it. Explain that you will be asking for a large damages award is because that is the amount needed to compensate your client for the losses caused by the defendant’s negligence. Let pain and anguish permeate the trial. Be sure the jury knows from the beginning that their function to compensate the plaintiff for past, present, and future physical and mental injuries caused by the defendant who deserves to lose.
2. For every serious physical injury, address the concomitant mental injury.
Pain does not equal suffering. They are different elements and both are fully compensable under the law. Pain is physical pain. Suffering is mental anguish. Example: If the defendant physician has failed to diagnose cervical cancer, pain is from the hysterectomy your young client was forced to endure and from devastating chemotherapy and radiation. Suffering is the gnawing fear that the cancer will come back, and the knowledge that due to the hysterectomy she has forever lost the ability to have a family on her own.
3. Use good taste and common sense.
If your client is an amputee or wheelchair bound or otherwise obviously catastrophically injured, do not keep him or her in court throughout the trial. This makes you look heartless and also gives the jury a chance to get used to the injury. Do not embarrass your client by having the client exhibit his or her injuries to the jury. Have your client leave the courtroom and then exhibit graphic pictures. If your client has a grim prognosis, have him or her leave the courtroom during such testimony by treating physicians. If your client can no longer have sex, do not create embarrassment by asking the client about it. Cover it with one of the physicians and touch on it again lightly but dramatically, during your closing argument.
4. Do not overreach.
If you try to make a silk purse out of a sow’s ear, it may injure your entire case, not just on damages, but also on liability. If you lose your credibility with the jury you may lose the case. For example, do not call a psychiatrist to testify about the traumatic neurosis incurred by your male client due to facial scars if the psychiatrist has only seen your client once, the scars have healed, and your client is engaged to be married.
5. Let others do the plaintiff’s complaining.
Remember, people juries like win; people juries don’t like lose. No one likes a whining witness. In most cases, the plaintiff must testify, but you must portray the plaintiff as a survivor making heroic efforts to overcome serious mental and physical injuries caused by the fault of the evil defendant. The plaintiff’s family and friends and sometimes physicians can and should do the complaining. They love and respect your client and can give graphic testimony as to what the injury has done to him or her and to their family. Even better as damages witnesses are neighbors or co-workers. They can tell the jury how your client was an avid gardener who took pride in having a beautiful yard and in doing all of the work himself, but that since the accident the yard has been overgrown except for when a boy from the neighborhood comes to mow it. Or how the client always worked late, even though there was no overtime pay, out of pride in doing a good job, but that since the accident, he has had to cut back his hours. Now he’s worried he will lose his job. Surveys have shown that the largest single fear of an adult male is the inability to provide for his family. If this has occurred, let the family tell about the devastating psychological effect this has had upon the family breadwinner.
6. Create impact with vignettes.
Spend time at the plaintiff’s home before the trial begins. Listen and observe. You will pick up many things that will help you create vignettes to bring the case to life for the jury.
For example, simply telling the jury that the plaintiff can no longer work around the house creates no impact. Instead try something like this. In your opening, mention that you were at the plaintiff’s house for dinner. You noticed that half of the porch was remodeled and half of it was old and unpainted. Inside you saw that one bedroom was refinished and two were in shambles with wood, nails and drywall piled on the floor.
7. Play “show and tell.”
Numerous studies have shown that people (jurors) remember what they are told least. If they are shown something, they are much more likely to remember it. If they are shown something and told about it at the same time, they are even more likely to be impressed by it and remember it. With this in mind, play “show and tell.”
Have your treating physicians demonstrate injuries by showing x-rays. Sometimes, they even have pictures taken before or during surgery which can be shown and explained from the witness box. Most surgeons also have anatomical models that they use to explain procedures to patients, as well as samples of the hardware they use. One of the most effective ways to dramatize a surgical procedure for a jury is to have the surgeon walk them through it step-by-step with a model and anatomical drawings. High quality medical illustrations and animations can be purchased for a reasonable price and downloaded directly from the internet.
If you videotape physical therapy, you may be able to show the therapy to the jury while the physical therapist is on the witness stand explaining what is being done, why it is being done, and why it is exquisitely painful. Explain that the plaintiff must go through this ordeal to have any chance of even a partial recovery. Just be sure to disclose during the discovery process that you plan to use and rely on this type of demonstrative evidence. Don’t give the other side an easy objection that could keep out some of your most powerful evidence.
8. Read every word of all hospital records, including nurses’ notes and medication sheets.
Buy a good medical dictionary. Look up every word you do not understand. Review side effects and risks of medications by consulting the Physicians’ Desk Reference. If you are unable to read nurses’ or doctors’ handwriting, ask them to read it to you. This will refresh their recollection as to the severe pain your client endured and his or her mental anguish at the prognosis. At trial, introduce the records into evidence and have the doctor or nurse explain what the patient had to endure.
9. Read and adapt all jury instructions that are relevant to your case.
Obtain a copy of the standard form jury instructions for your jurisdiction. Study them and apply them to your fact situation. Tell the jury in your closing argument that the judge has instructed them that they must award money damages for non-monetary losses, like pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, and humiliation. Use the exact words found in the standard jury instructions.
Scan the form instructions and incorporate them into your closing PowerPoint presentation. Or have the form instruction blown up onto a foam exhibit board. Your argument will be hard to refute when the jury sees that you are asking them to act according to what the judge instructed them the law is.
Another good way to do this during closing is to show the jury the verdict form, which should specifically state all recoverable non-economic losses. Without overreaching, clearly and concisely apply the facts of your case to the jury instructions so that the jury will understand the elements of legal damages, all of which plaintiff must be compensated for in money. It can be very powerful to show the jury the exact verdict form they have been given, only with the blanks filled in ahead of time with your answers to the liability questions and your numbers on the lines for damages.
Remind the jury that partial justice is also partial injustice. Plaintiff will only have one day in court. If the award is inadequate, the injustice will continue all the rest of the plaintiff’s life. The plaintiff has only one chance to present a case, just as the jury has only one chance to make sure its verdict renders complete justice. The verdict must speak for all time to remedy the damage the defendant has caused.
10. Prove what has been lost and prove what has taken its place.
Use witnesses, photographs, videotapes, scrapbooks, home movies, etc. Prove what the plaintiff’s life was like before the incident in question and what was taken away by the defendant’s negligence. Then prove, through family members, friends, physicians, nurses, therapists, psychologists, psychiatrists, photographs and videotapes, what the plaintiff is now forced to endure in place of his or her happy life. The plaintiff is a person just like a member of the juror’s family, who is bravely facing a bleak future and who needs money both to reimburse for a wrong done and to compensate for physical pain and mental anguish, now and for the rest of his life.
If your plaintiff is young, use life expectancy tables to prove the probable duration of the pain and suffering. Use a per diem argument if permissible in your jurisdiction. Another effective way to present permanency damages is to look backwards. Compute the number of years the plaintiff is expected to live with the injury. Then look backward that far in time. Use the internet to find examples of what life was like back then. For example, in 1982, there was no internet. Cell phones were the size of briefcases. The Soviet Union existed and we were locked in the Cold War. It seems like forever ago. Then use all of the changes over those years between then and now to illustrate how many years the plaintiff will be living with the consequences of the injury.
About the Author
Ronald V. Miller. Mr. Miller’s practice initially focused on the representation of pharmaceutical companies, handling cases around the country for companies such as Bayer and GlaxoSmithKline.
Preferring to represent individual victims as opposed to big companies, Mr. Miller now puts to use the experience he gained in representing big companies to work exclusively for serious injury victims in motor vehicle accident, products liability and medical malpractice cases. His practice now focuses on representing personal injury clients in Maryland who have been injured as the result of an auto, motorcycle, or truck accident, defective product, or by medical malpractice, obtaining millions of dollars for his clients in settlements and trial verdicts.
Mr. Miller is also a Professor at the University of Baltimore School of Law, instructing in Insurance Law and Sports Law.