Practical Tools for Persuading Your Jury to Award Substantial Damages
Proving damages in a tort action requires you to show three things to your jury:
- Who your Plaintiff was as a human being before the injury.
- How the injury has changed her.
- What the Defendant did wrong − so the jury understands how profoundly the Defendant’s conduct affected your Plaintiff’s life.
In Proving Tort Damages for Specific Injuries, veteran trial attorney Deborah Gander explains how to achieve these three goals. Here are 15 tips to give you a glimpse of the many trial-tested tactics detailed in the book.
It is powerful evidence to hear a parent describe how the child’s room remains intact, down to the stuffed animal he or she left on the floor before heading off to school that day, or to hear a widow describe how she keeps her husband’s clothes in their closet because they smell like him. §1:10
Soft tissue injuries
If there is something that the client has done even once since the injury, then he or she must come clean in deposition or risk impeachment and a complete loss of credibility. For example: Instead of “No, I can’t jog anymore,” the client needs to explain: . . . §2:02
Often, your client will have refused treatment at the scene and told everyone that he or she felt fine. These “denies pain” statements are likely to be recorded in the reports . . . Speak to the emergency personnel and discuss how frequently they see individuals who are not in apparent distress at the scene, but later show problems or injuries that were caused in the collision. Most emergency personnel will confirm that this is true. §2:05
Injured bodies break down faster than healthy bodies. A common and effective way to describe the resulting deterioration is to have the doctor describe an “age-advancement” result of the injury. For example . . . §2:06
Spinal and orthopedic injuries
Give the treating doctor hypotheticals and elicit specific examples. For example, rather than asking, “Can Mr. Brown walk long distances?” ask, “If Mr. Brown takes his six year old daughter to the theme park, will he be able to walk around with her?” §3:13
If hardware was implanted, as it almost always is, have an artist do “reverse x-rays” that paint the hardware and make it pop-out when your jurors view it. §4:08
Use a copy of your client’s job description and have the health care providers explain how the injury or disability prevents your client from doing this work, or makes it far more difficult to do it well. §4:13
Physical and occupational therapy
Have the therapist bring the tools of his or her trade into the courtroom so that the therapist can demonstrate, with your client whenever possible, how certain therapies are conducted and why. For example, the therapist should bring . . . §3:14
Get permission to send a videographer to one or more therapy sessions to videotape your client . . . Videotape without sound to prevent objections that may exclude the tape from evidence, and also to prevent an inadvertent or careless slip of the tongue from being memorialized on tape and ruining your ability to visually demonstrate the therapy session. §4:09
Your goal in cross-examining a defense neuropsychologist is not to show that the testing proves your client is injured, but to show that the testing atmosphere and interpreter were so biased and calculated to prevent a fair performance by your client that nothing in this doctor’s testing or opinion can even be considered. §5:18
Burns, scars, and disfigurement
A photo montage of your client growing up and for several years before the burn injury, then contrasted with the post-burn disfigurement, can help drive home the enormity of your client’s damage. §7:13
Show the defense expert photos of your client’s scar or disfigurement and ask him if he would want to look like that for the rest of his life. Again, however he answers the questions, you have scored a point. §7:22
Take time with your doctor’s testimony. Have her use as many “life style” examples as possible. “Does this injury affect Eunice’s ability to sleep through the night? Why? Does inability to sleep exacerbate a peripheral neuropathy? So it is a vicious cycle?” §8:10
In a rape case, have the rape counselor spend significant time explaining rape trauma syndrome . . . Some jurors may think that your client survived and is minimally if at all physically injured, so she should just move on with her life. A qualified and skilled rape counselor can explain the devastating psychological damage that is done during a rape without regard to whether physical injury occurs. §11:16
If your client has avoided therapy, the therapist can testify to PTSD behaviors in general, and then answer questions about your client’s life that you phrase in the form of a hypothetical based on facts you will be able to prove. §11:17