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tellingtheStoRyoFyouRclient’ SdamageS
Trial & Litigation Section Chair: LaurenHumphries – BuchananIngersoll & Rooney
Storiesmaketheplaintiff’ s damagesrelatable, and demonstrativeexhibits andreenactmentmake themmemorable.
Those moments waiting for the verdict to be read after the jury’ s knock on the door are gut-wrenching. In one recent trial, it was even more so than usual. This case was ten years old, with numerous continuances, two mistrials, and an appeal. Awaiting the judge’ s reading of the verdict, my client was squeezing my hand so tightly, I was losing circulation. Her tears of joy flowed once the Judge read the answer to the first question on negligence,“ YES.” The judge then read the damages amount. Instead of more tears of joy, there was surprise. And disappointment. The jury had awarded damages, more than the amount of our proposal for settlement, but much less than what we had sought. We never know exactly how or why juries decide complex cases, and this was a head scratcher. It was a reminder to revisit fundamental principles for proving personal injury damages and to remember the importance of weaving a compelling narrative on both liability and damages.
Working closely with a particular jury consultant my whole career( my whole life), Harvey Moore, has
taught me many helpful pointers to maximize damages. Here are three:
• Start early: Start as soon as you first meet your client to open the file. gather stories, mementos, photographs, key medical records, etc. and build your damages file. Stories and anecdotes make your client relatable to the jury, and by starting early, you can weave them into every part of your case.
•“ Before and After” witnesses work:... if done properly. Some lawyers mistakenly spend too little time on Before & After( B & A). Start early. gather stories. Those witness’ s stories strengthen your client’ s voice. In my recent case, the client’ s close friend served as a B & A witness. In a difficult damage case, where fatigue was one of the main damages, she would testify how the client’ s volunteer work at her church had waned since her injury. She shared details of the client’ s wonderful contributions to the church in helping to feed the hungry and hammered home how painful it was when her life’ s calling was taken from her.
Bonus pointer: the witness passed away just before trial, so always have a backup plan!
• Reenact the damages and use visuals: Stories make the plaintiff’ s damages relatable, but demonstrative trial exhibits and reenactment make them memorable. We all know how powerful photographs of damage / injury can be, but how you use them is key. In a hospital pressure ulcer case, the gruesome wound photographs helped show the immense pain. But having the client’ s wife use enlarged photographs to show how she cleaned the wound after every bathroom visit, carefully tending to every crack and crevice to prevent worsening infection, was game changing for his damages and hers. Showing the jury the gauze, saline, sponges, and ointments she used made the story real. reenactment does not have to be expensive animation. In another trial, the client suffered amputation of two fingers on each hand and
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