For young plaintiffs' lawyers handling a case on their own for the first time, it can be difficult to focus much attention on damages from the start. Unless it is the rare admitted liability case, we know that for the jury to even get to thinking about numbers on the verdict form, they first have to agree with you on liability and causation. If you cannot get over those hurdles, then no one will be thinking about damages.
Of course, we care about our clients. We have spent time with them, gotten to know them, and they have gotten to know us. But even in cases where the damages are obvious, how do you ensure that a jury of lay people, who have not spent the last several months, maybe even years, studying the case understands the impact this experience has had on your client?
While we can never fully predict what a jury is going to do with our case, we have found that the best strategy for damages in all cases is to build trust, prepare early, and incorporate often.
Build Trust
In order to understand your client’s damages well enough to explain to a jury, your client must trust you enough to explain them to you. Trust is the foundation of every strong attorney-client relationship, and you begin laying that foundation from the first meeting. Most people are at least a little hesitant to walk into an office they have never been to, and tell a person they have just met intimate details about one of the worst experiences in their lives. The client must trust you, and that trust must be earned.
Thus, the initial client meeting should not solely be a "fact-finding mission." You should be prepared to ask your client thoughtful and carefully crafted questions that will help you get the information regarding their damages that you need, while also respecting the sensitive nature of the topic. This also means you need to hear your client: not just listen, but really digest the information your client is giving you about how their injury or their loss has affected them. Distractions must be eliminated: don't bring your cell phone or laptop into the client meetings, don't set an arbitrary time limit on the initial meeting, and try not to interrupt the client as they speak. If you can, try to bring another person into the meeting with you, like an assistant, paralegal or intern, who can take notes so you can give your full attention to the client.
However, building trust with the client is an ongoing process. Remind clients to check in with you if anything new develops in their lives, and try to schedule regular check-ins of your own with the client. This shows them that you are thinking of their case, but also gives you a good opportunity to ask additional questions about how their injuries may be developing and what new healthcare providers' records you may need to order.
Prepare Early
In addition to building trust with the client, pulling important details about their damages during the initial meeting helps you begin preparing your presentation on damages, including how to prepare your clients, thinking of additional fact witnesses, and what experts to retain. It is never too early to begin thinking about damages. In fact, it should play a key role in evaluating a case and should be thought of at every step of the way thereafter.
Preparing Your Client and Additional Fact Witnesses
The preparation for your client's deposition is one of the most important tasks in the case and one of the most important moments in the attorney-client relationship. You want to review the facts of the case with the client and ensure they have an understanding of how the deposition will work logistically, but you must also be sure to spend ample time with them talking about their damages, explaining how personal damages can be, and preparing them on how to speak about their damages.
For example, suppose your client was rear-ended by a negligent driver and now suffers back, shoulder, or knee pain. You know that they now likely have ongoing pain and discomfort, required past medical treatment, and may need future treatment. But what does this actually mean to your client on a day-to-day basis? It may mean the loss of evening walks with their spouse, no longer being able to bend over and pick up their child, or no longer being able to safely take care of themselves. It may mean the loss of independence or losing a sense of the person they once were. It can be difficult to put those deeply personal losses into words, so encourage the client to think of stories that can serve as examples of what this injury has cost them.
In certain cases, it can be worthwhile to engage consultants to help you prepare your client for their deposition. These services, including Act of Communication,1 are especially valuable when your client may be less willing to open up or take instructions. For example, perhaps the client has suffered a loss so great that it is hard to put into words, is a little too chatty, or may give the impression that they are not as likeable as you know they are once their shell has been cracked a little. Professionals that specialize in witness preparation can help put both the attorney and the client at ease by arming the client with the necessary tools not only to get through their deposition unscathed, but also to convey effectively how their life has been impacted by their injuries.
The role-playing techniques utilized by these consultants gives the client a better understanding of what to expect, making them more comfortable to open up and discuss how the injuries they have suffered have impacted their lives. It is surprising how often stories come out of these witness preparation sessions that the client did not think of beforehand, and probably would not have had the consultants not been engaged to help with preparing. Damages are one of the most difficult things to get a client to discuss, while also being one of the most important.
However, especially in particularly catastrophic cases, the client may not be able to open up about their damages, regardless of copious preparation, because one of the coping mechanisms they have learned is to not focus on how their injury affects them. How their injuries affect them is now their "new normal," and they have learned to adjust to this reality. In those situations, we often turn to our clients' family and friends to serve as damages witnesses. These people have seen firsthand how the injury has affected the client but may be more open to sharing this information than the client. Ask the client for names of people who may have this knowledge and explore how you may be able to utilize these witnesses to your client’s benefit.
Preparing Your Experts
Your medical expert(s) should be able to testify to your client's past and potential future damages from a medical perspective, but what may be trickier is making sure the testimony makes sense within the context of the law.
For example, in medical malpractice cases where non-economic damages are capped, Section 538.215, RSMo. provides for two separate caps, with the higher reserved for catastrophic injuries.2 Catastrophic injury is defined as injuries resulting in quadriplegia, paraplegia, the loss of two or more limbs, significant and permanent cognitive impairment, irreversible failure of a major organ, or significant loss of vision.3 However, there is ambiguity within that definition. For example, the statute does not further define what constitutes a major organ, what "irreversible failure" of an organ means, or how much qualifies as "significant loss" for vision. If it is possible that your client's injuries fall within the statute, it is important to discuss this with your medical expert beforehand so they are prepared to testify accordingly.
It is also important to have the right types of expert witnesses in making your case for damages. Many cases involving catastrophic injuries may also benefit from having a life care planner evaluate the client and put together a plan that outlines all of the needs created by the injuries the client has suffered. A life care plan is based on standards of practice and the assessment of the client, as well as available data and research. The plan includes all current and future needs and their associated costs. Life care planners generally have a background in the medical field, such as therapists, rehabilitation professionals, nurses, or physicians. A life care plan will give the jury an idea of the current and future medical costs your client faces due to the injuries they have suffered. Additionally, the plan provides a roadmap for the medical care that would benefit the client.
Another type of damages expert that is not often thought about is a punitive damages expert. These experts are generally economists, or someone with a background in finance, that will be able to explain to the jury the financial health of the corporate defendant, including their annual revenue. A punitive damages expert can analyze what amount of money would actually have an impact on a corporate defendant if a jury were to assess punitive damages. In instances where you have a strong claim for punitive damages, consider retaining a punitive damages expert to help the jury further understand how they can deter the conduct at issue with their verdict.
Incorporate Often
The final step in an effective presentation on damages is to incorporate often during the discovery and at trial. During discovery, you should question whether any fact witness, no matter how remote, could be utilized to discuss damages. During trial, every day of the plaintiff's case should have at least one witness on damages, preferably scheduled for the end of the day so it is the last testimony the jury thinks about when they go home.
To this point, the authors highly recommend David Ball's books on damages.4
Conclusion: Failing to Plan is Planning to Fail
As every good practitioner knows, damages may be the last element in a negligence claim, but they should be top of mind from beginning to end of every case. One of the biggest pieces of a client's damages may be those intangible things that are not going to be found in a line item of a medical bill. They are found in the stories that your client tells about how life has been greatly impacted by the injuries they have suffered that were caused by the defendant.
As a result, building trust with your client becomes even more paramount as they need to be comfortable enough with you to tell you their most vulnerable stories, so that you can craft a plan to tell your client's stories of their damages to a jury in a way that will have the most impact. There are several tools as outlined above that can be utilized to help tell the jury how your client has been damaged and impacted. These all take some planning on both the attorney and the client's part to have the biggest effect at trial, and, as with every aspect of being a trial lawyer, failing to plan is planning to fail.
1. Act of Communication was founded in 1977 by Alan Blumenfeld and Katherine James. They bring state of the art trial communication skills to attorneys across the country. With backgrounds in acting and law, they are a great fit for helping to tell client's story to a jury. See About Us, Act of Communication https://actofcommunication.com/actof-communication-about-us (last visited April 11, 2022).
2. § 538.215, RSMo.
3. § 538.205 (1), RSMo.
4. David Ball is a trial consultant and the author of trial strategy texts David Ball on Damages and David Ball on Damages 3.
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