Big damage awards don’t just happen. You need a plan for success.
Any lawyer who has tried a damages case has experienced the quandary: What damage number do I give the jury? Is it enough? Is it too much? How do I ask for it? How do I support it?
To give your clients justice, you need something more than a “hit or miss / hope and go” approach to damages. You need an intelligent damages strategy that encompasses every phase of the litigation and trial. Proving Damages to the Jury gives you that strategy.
Relying on a solid foundation of current jury science research and more than 30 years of courtroom experience, author Jim Wren walks you through every step of your damages case, from the initial screening of a potential client to closing argument at trial. These abbreviated excerpts are just a sampling of what you will learn:
Develop a discovery plan to support your complete damages story. In every case, the “damages story” is more than a cataloging of injuries and losses to the plaintiff. It is the story of how the jurors can do something that is right and that matters to their families and community. Proof of the extent of damages to the plaintiff is important, but that proof will probably be used by the jury only to the degree that the jury is otherwise motivated to make a statement. Thus, discovery must be tied first to supporting the moral theme of the case, and then to providing support for the amount of damages. [§10:01]
Take video depositions of your damage fact witnesses. The common practice is to depose the opponent’s key witnesses, and leave it to your opponent to depose your key witnesses. However, with many of your damage witnesses, it’s beneficial to take a different approach. Except for your pivotal damage fact witness (the key family member who you know you will want to bring to trial as a live witness), plan to conduct a brief (15 minutes or less) direct examination of each of your own damage fact witnesses in deposition, on videotape. The objective is to put a compact, compelling video segment into the can, which then gives you options at trial. [§10:30]
Set up damage issues with requests for admission. When both the existence and cause of a damage element appear to be obvious, consider sending the following pair of requests for admission near the end of the discovery period . . . . To force an admission regarding a specific aspect of injury, send this, similar, pair of requests . . . . If there are multiple damage elements that appear to be established, send multiple pairs of requests, with one pair for each such damage element. The objective is to require the defendant to pick its poison. [§10:41]
Challenge the defense medical expert. If the court orders a medical exam, there are several steps to consider taking in discovery: (1) Send a request for production of documents to the designated physician, seeking five categories of documents, as follows . . . . (2) Conduct a thorough investigation, including . . . . (3) Aggressively depose the physician, covering at least these 29 points . . . . [§10:46].
Use the seven stages of your damage story as the organizing principle for your visual strategy. This approach assures that your damage story retains its central role, rather than getting lost in a mass of facts. For each stage of the damage story (setting, choice, conflict, consequence, crisis, climax, resolution), look for the one visual to best stand as a symbol of that stage. In addition, look for the additional visuals needed to fully explain that stage. Your key visual for that stage becomes the anchor for discussion of that stage of your story. [§11:11]
Translate your damage story into visuals by working through these ten key questions: What first images come to mind? What anecdotal stories and images go with each stage? What images go with the anger points? What is surprising about the story? What concepts are difficult to explain verbally? What are strong images for the core values? What are metaphors for the story? What are the pivotal issues? What are strong images for the themes? What images evoke your framing strategy? [§11:51 – §11:60]
Enhance your credibility by making “verifiable proof” a focal point of your visual strategy.Even if it only exists for a limited part of your damages, objectively verifiable proof often has a multiplier effect on your credibility. From brain injury to soft tissue injury to projections of future economic loss, juries want and need objective, understandable and scientifically demonstrable proof of injuries. One way to emphasize verifiable proof is by making it a focal point of your visual strategy. If there is an objective test that documents injury, there is a way to demonstrate its results visually. Even if there is no specific test result, there may be a series of clearly established facts that verify a compelling point. Don’t just list them off for the jury verbally. Prepare a demonstrative exhibit with the conclusion as the headline, and below it list each of the established facts that compel the conclusion. Presenting the conclusion and its supporting facts visually adds weight to the verification of your damage claims and enhances your credibility with the jury. [§2:55]
Raise the issue of frivolous lawsuits. If you have selected a jury for the plaintiff in a damages case lately, you already know why voir dire is important. If you haven’t, here is the answer in a nutshell: Most jurors today simply accept that there are too many lawsuits, that many of them are frivolous, and that a plaintiff’s lawyer will try to talk them into a “McDonald’s” verdict. Jurors willdiscuss where your case fits into the spectrum of “frivolous lawsuits” brought by “greedy trial lawyers.” The only real question is whether that discussion will start in jury deliberations without you or in jury selection where you have a chance to participate in the discussion. [§14:01]
Address jurors’ reluctance to award damages for unintentional conduct. Jurors have a tendency to provide a lower damage recovery for less egregious conduct. When the injury results from unintentional conduct, the reluctance to assess damages for unintentional injury needs to be addressed in voir dire. One approach to this is to focus the jury on the negligence of the choice or choices made by the defendant, rather than on the failure to use reasonable care. For example: “How important is it to focus on the road and surrounding traffic when driving?” “How safe do you consider it to be when drivers choose to talk on cell phones while driving?” Another approach is to . . . . [§14:53]
Plan the sequence of your questions. There are some very good plaintiff attorneys who start voir dire with a fairly detailed description of their case, but I recommend against that approach for several reasons . . . . A better approach is to use your questions, rather than your statements, to reveal your case. The following types of questions, asked in this sequence, allow you to achieve this goal: (1) Questions that educate the jurors on at least a couple of the strengths of your case, and thereby frame this as an important case; (2) questions that provide anchor numbers for jurors in the consideration of damages; (3) questions that explore for the most problematic biases and challenges relevant to your case; (4) questions that educate jurors on the preponderance standard for the burden of proof; and (5) questions that will inoculate jurors against the defense. [§14:21]
Build a persuasive opening statement by articulating the values that have been threatened by the defendant’s conduct and the extent of damages it will take to protect those values.
Focus on choices, rather than results, in presenting damages. The focus must be on choices, not just events. Since a jury’s assessment of damages is driven more by anger and threat to values than by sympathy, the jury’s decision on damages will be influenced more by facts about why the defendant made bad choices than by facts that merely describe the occurrence of injury. Therefore your opening statement must focus first on the bad choices of the defendant that caused bad results, rather than just on the bad occurrence and its results. [§15:21]
Start with the question for the jury. How can you frame what the case is about, on your terms, in a way that stimulates receptivity, rather than resistance? By framing the question for the jury first, and then showing why everyone agrees on the key standards applicable to the case. While people (including jurors) resist being told what to believe by someone they don’t trust, their minds automatically go to work at a subconscious level answering a question posed to them. Questions are perceived as neutral. They bypass defensive filters. Don’t waste time or the jury’s attention with pleasantries or fluff. With your very first words, state the question for the jury. “In this case, you’re going to be answering a question for yourself: How important is it … [for a driver to watch the road instead of texting in heavy traffic] [for a nursing home company to protect an employee from retaliation for reporting abuse of a patient] [for a company to be extremely cautious about advertising something as safe for children]?” [§15:41]
Help jurors understand the significance of their role. Much of “tort reform” publicity is geared toward convincing prospective jurors of the significance of putting a stop to “frivolous lawsuits” and “greedy trial lawyers.” As a result, many prospective jurors come to trial believing that their most important mission is to send a message with a defense verdict. You have to reframe the debate by focusing on the positive importance of a significant damage verdict to the community at large, not just to your plaintiff. What can you do (and avoid doing) to accomplish this? Three things . . . . [§15:23]
Understand what makes cross examination powerful. Powerful cross examination comes from walking the witness through the truth of your position, step by step, in such a way that the witness ultimately has to agree with you or be completely discredited with the jury. Powerful cross examination does not depend on trickery. It depends on truth well told. Although your specific objectives will vary from one witness to another, when planning your cross examinations, ask yourself, “What is it about our damages that this witness will have to admit if I ask it the right way?” [§17:03]
Use “you can understand” questions to validate the consequences of the plaintiff’s injury.There are often consequential damages that go beyond the immediately apparent or expected, but that have naturally flowed from the initial injury. By interspersing the facts of the injury, which the defendant has to admit, with “you can understand” questions about the damaging consequences of the injury, you can usually get the defendant to validate the full spectrum of damages.
Q: You’ve heard your lawyer say that you’re not responsible for [plaintiff’s] business starting to lose money? I want to ask you about that.
Q: You can understand how pain could interfere with the ability to concentrate?
Q: And you can understand how important it is in business to be able to concentrate?
Q: And you can understand how the inability to concentrate could cause business problems? [§17:24]
Encourage juror anger as a motivator for damages. The jury’s anger toward the defendant and the defendant’s violation of important values is a powerful motivator for the award of damages, more so than sympathy for the plaintiff, but anger must be nurtured in the jury before it can be safely displayed by the attorney. There are four basic concepts you can use in cross-examination of the defendant to encourage juror anger as a motivation for damages: (1) Focus cross examination on the choices made by the defendant; (2) focus cross examination on the refusal of the defendant to be accountable; (3) use the concept of reversals; and (4) ask this pair of questions to properly frame the amount you are seeking for intangible damages . . . . [§17:21]
Provide guidance for intangible damages. Do not be afraid of quantifying the plaintiff’s injuries. Jurors struggle with the problem of placing a dollar value on aspects of life that are priceless. If you ignore the struggle by telling jurors that only they can determine the amount, you are abdicating your responsibility to guide the jury, and you are forfeiting your chance to be part of the discussion.Never leave an element of damages solely up to the jury, at least in those jurisdictions which permit the amount of intangible damages to be suggested and argued to the jury. [§18:06]
Help jurors make a significant difference. In the process of talking to the jury about what makes a difference, explain (to the extent that the law of the jurisdiction allows) what damage amounts you’re seeking and why those amounts are right. Don’t limit yourself to what your clients “need.” What they “need” is the language of the defense. You want the jury focused on what is “right” and “just” and what makes a real difference. Don’t sell your clients short. Consider this example . . . .[§18:03]
REVISION 5 HIGHLIGHTS
With this new edition of Proving Damages to the Jury, authors Jim Wren and Laura Brown have updated the book with new and expanded coverage of a broad range of substantive topics, including::
Why Jurors Assess Big Damages
- Articulate the relevance of post-occurrence conduct to avoid erroneous exclusion of evidence as a “subsequent remedial measure”
- The direct liability of the organization, in failing to put the safety systems in place that could have averted the accident, can be a more persuasive damages argument than the negligence of an individual defendant
Valuations And Damage Models
- Updated tables re: computing lost earnings and earning capacity in personal injury/wrongful death cases
Damage Experts and Daubert/Frye Issues
- Grounds for Frye challenges to expert testimony
- Daubert relevance and reliability objections
- Anticipated Revisions to FRE 702
- Cases re admissibility of expert testimony by life care planners; vocational experts
Discovery Tactics To Maximize Damages
- Plaintiff’s treating doctor as a key witness
Testing Damages Before Trial
- Inherent group limitations
- Virtual testing—screening applicants
- When to use a concept focus group; a structured focus group; a mock trial
- How and when to use day-in-the-life videos on direct
- New tip for handling an evasive or unresponsive witness on cross
Preparing For Common Legal And Factual Issues
- Tax effects arguments in physical injury and other types of cases
- Collateral source evidence
- Loss of consortium
- Wealth of the parties
Economic Loss Rule
- Origin of the “limits on negligence” rationale
- Updates to Restatement (Third) of Torts: Liability for Economic Harm
ABBREVIATED TABLE OF CONTENTS
Part 1: How to Create the Story for Damages
Chapter 1: Why Jurors Assess Big Damages
Chapter 2: Credibility Is Vital for Maximizing Damages
Chapter 3: How to Frame the Damages Story
Chapter 4: Delving Into the Story
Part 2: How to Build the Right Damage Model
Chapter 5: Client Interview and Investigation
Chapter 6: Valuations and Damage Models
Chapter 7: Damage Experts and Daubert/Frye Issues
Chapter 8: Working With Damages Experts
Chapter 9: Valuation of Intangible Damages
Part 3: How to Prepare the Damage Case for Trial
Chapter 10: Discovery Tactics to Maximize Damages
Chapter 11: Developing Your Visual Strategy
Chapter 12: Testing Damages Before Trial
Part 4: How to Prove Damages in Trial
Chapter 13: Group Formation with the Jury
Chapter 14: Voir Dire
Chapter 15: Opening Statement
Chapter 16: Direct Examination
Chapter 17: Cross Examination
Part 5: How to Handle Unique Issues in Damage Cases
Chapter 18: Closing Argument
Chapter 19: Punitive Damages
Chapter 20: Confronting Difficult Fact Issues
Chapter 21: Scientific Proof of Brain Injury
Chapter 22: Economic Loss Rule
Chapter 23: Other Legal Battles on Damages
Table of Statutes
Table of Cases
ABOUT THE AUTHOR
Jim Wren is a trial lawyer with more than 30 years of trial experience. He is also a Baylor law professor. He is nationally board certified in Civil Trial Advocacy by the National Board of Trial Advocacy, and by the State of Texas in both Personal Injury Trial Law and Civil Trial Law. He was named a Texas Super Lawyer each year from the origination of the designation in 2003 through 2007 when he was recruited to the Baylor Law School faculty as a professor to teach trial procedure and advocacy. Although he now teaches on a full-time basis, he continues to represent a limited number of clients in courts across the nation.
Jim has served as national president (2009-2011) of the National Board of Trial Advocacy chapter president of the American Board of Trial Advocates (ABOTA).
Jim graduated with a J.D. cum laude from Baylor Law School in 1980, and subsequently added an M.A. in International Relations from the University of Kent at Canterbury. He is also a graduate of Trial Lawyers College in Dubois, Wyoming.
Laura Brown is a plaintiff’s trial lawyer with multiple multimillion dollar jury verdicts. She is a partner in Williams & Brown (www.TrialFirm.com), and also serves as an adjunct professor at Baylor Law School, teaching the courses in Advanced Trial Preparation and Personal Injury Trial Law. She is Board Certified by the Texas Board of Legal Specialization in Personal Injury Trial Law. She is recognized as a Texas Super Lawyer and is chapter president-elect of the American Board of Trial Advocates (ABOTA). She graduated from Baylor University in 1989 and Baylor Law School in 1992.