Damages in the Difficult Damages Case

By: IRA H. LEESFIELD
Leesfield Scolaro
2350 SOUTH DIXIE HIGHWAY
MIAMI, FLORIDA 33133
(305) 854-4900

I. GENERAL PRINCIPLES OF PROVING DAMAGES

A. Proving Damages

1. Condition the Jury on Voir Dire

2. Opening Statement

3. Use of Expert Witnesses

4. Use of Lay Witnesses

5. Presence of Plaintiff in the Courtroom

6. When not to Use a Witnesses

7. Demonstrative Evidence

8. Final Argument

II. DAMAGES IN THE WRONGFUL DEATH CASE

A. Developing Your Theme

B. Experience the World of the Decedent

C. Personally Conduct the Witness Interviews

D. The "Golden Rule versus the Platinum Rule"

E. The Importance of Interviewing Damage Witnesses Before Jury Selection

F. Explaining the Pain and Suffering of the Survivors

G. The Direct Examination of the Deceased's Family

III. DAMAGES AND THE ELDERLY PLAINTIFF

A. No Injury to an Elderly Plaintiff is ever Minor

B. Key Points in Representing the Elderly Plaintiff

IV. CLOSED HEAD INJURIES

A. Overcoming Skepticism

B. Important Concepts in the Closed Head Injury

V. THE SOFT-TISSUE INJURY

A. Establishing Credibility

B. Explaining the Injury

C. Key Points

VI. CONCLUSION

I. General Principles of Proving DamagesA. Proving Damages

1. "Condition" the Jury on Voir Dire

The time and place to plant the seed is during voir dire. With adroit questioning, the panel can be informed as to the "significance" of the case and advised as to the extent of the damages that you will be seeking. It is important to create in the jurors' minds a feeling of being part of "something special." Jurors may have read about the "big cases" in the newspapers and heard about them on T.V. and it can be exciting for them to be part of such an event. However, it is not easy to convince a jury of average citizens to award damages in six figures or higher. Initial apathy, must be converted into empathy before a large verdict can be obtained.

2. Opening Statement

If the plaintiff has significant damages showcase them on opening - hold nothing back. If exhibits can be used, use them. Do not, however, use the dollar figure that you anticipate you will be requesting. At this point, the jury is not yet psychologically prepared for the demand. Oftentimes a jury will be unnecessarily turned off when the attorney tells them on opening statement what he is going to ask them for at the conclusion of the case. Opening statement is the opportunity to grow the seed you planted on voir dire.

When specials are not significant you have to give the jury something else to sink their teeth into if you want to recover a reasonable verdict. For instance, if the defendant's conduct was repetitive or outrageous, present the jury with a theory of aggravated liability. In the alternative, delve into the plaintiff's life and show the jury how a minimal injury can drastically affect the plaintiff and the plaintiff's family and friends. These statements will be built-upon and fortified through the trial lawyer's use of selective witnesses.

3. Use of Expert Witnesses:

(a) Medical Personnel:

(i) Examining and treating physicians can be used to demonstrate the plaintiff's pain and suffering, the permanence of plaintiff's injuries, and future complications which may require surgery and treatment;

The physician should testify to both the plaintiff's subjective complaints of pain and the objective findings that support the complaints.

(ii) Psychiatrist and/or psychologist can testify to mental pain and suffering of the plaintiff

(1) Very useful in explaining emotional damage such as worry, fear, anxiety and depression.

(2) Essential to establishing post-traumatic depression.

(iii) Physical therapist can also testify to the plaintiff's pain and suffering;

(iv) Neuro-psychologist can demonstratively establish the loss of function suffered in what might otherwise appear to be a minor head injury.

(b) Rehabilitation Experts:

(i) The function of the rehabilitation expert is to provide th jury with a realistic and accurate assessment of the injury and its impact.

(ii) Use rehabilitation expert when injury has significant effect on the plaintiff's future in terms of loss of or diminished earning capacity, physical or mental abilities - especially brain damage, loss of limb, any injury which significantly impairs

(iii) The rehabilitation expert and economist need to work together. The rehabilitation expert is important in laying the foundation for many of the economist's opinions, especially explaining the client's "real" prospects for future employment.

(c) Economists:

(i) The function of an economist is to provide th jury with an appreciation of losses/costs which will continue many years into the future.

(ii) An economist is mandatory in cases involving

(1) young injured client with great life expectancy and earning power (project future losses); substantial medical expenses which will continue into future (typical neurological injury where custodial/medical care must be provided over many years).

(iii) Another school of thought contends that traditional economic approach/reduction to present money value may disfavor a personal injury plaintiff. This approach suggests plaintiff's counsel may be able to argue for much larger award of future damages than may be subject to proof by an economist.

(iv) Economist can be persuasive in providing jury with a minimum base for reaching its verdict.

(v) Economist may be vehicle through which documents or publications may be admitted or brought to the jury's attention.

4. Use of Lay Witnesses

(a) Who to call

(i) Testimony from family, friends, neighbors, sporting partners (depends on age), fellow students, and physical therapists are all effective methods for demonstrating the plaintiff's pain and suffering.

(ii) Strategies when calling lay witnesses:

(1) Stress the need for honesty

(2) Keep it simple

(3) Review prior statements/depositions

(4) Don't overstate

5. Presence of Plaintiff In the Courtroom

(a) If of sufficient age and ability, the injured plaintiff must impress the jury with his or her spirit of effort. Injured plaintiffs who have made great efforts to rehabilitate themselves will make the best impression on the jury. "Undersell" is the best advice. Let the physicians and you "sell" the injury. The client, however bad the injury is, is the poorest advocate.

(b) Always use sensitivity and good taste. An unnecessary number of good damage cases have resulted in low verdicts because the plaintiff's attorney was tasteless in his or her presentation. There can be overkill even in the serious injury case. Here are some rules to follow:

(i) Do not permit jury views of body parts that are not usually exposed to public view. This will be terribly embarrassing to the plaintiff as well as the jury and risks jury revulsion and anger. A more discrete method is to display the injuries through colored photographs suitably enlarged for presentation. Remember, the jury cannot take your client into the jury room with them, whereas they can take the pictures. Whenever you have a personal view, also use as complimentary evidence, colored photos of the injured parts.

(ii) When an expert physician is discussing personal and intimate matters such as sexuality or psychiatric problems or matters ordinarily not discussed with the patient, have your client be excused from the courtroom.

(iii) When discussing these same matters on opening or closing, have your client leave the courtroom even if he or she has been there for the liability aspect of the statement or argument. It can be very dramatic to pause after the liability argument is concluded and watch your client slowly depart the courtroom and then advising the jury that counsel felt they would be more comfortable discussing what was to be discussed while the child is absent.

6. When Not to Use Witnesses

(a) In their quest for excellence, trial attorneys frequently use unnecessary witnesses or experts. Do you need a psychiatrist to tell a jury that it is depressing to be a quadriplegic?

(b) In other words, sometimes lawyers tend to overkill with what, in effect, is redundant evidence; often times in doing so they risk insulting the intelligence of the jury.

(c) Some authorities believe that even an economist is unnecessary in a major injury case to establish future damages. This school of thought is based upon the belief that economists are extremely difficult experts to understand and are not well liked - jurors blaming economists for the bad economy like they blame the weatherman for a rainy day. It is felt that a simple multiplication of lost earnings per year times a work expectancy left for the plaintiff is just as effective and many times more so. This approach forces the defense attorney to wrestle with explaining to the jury what present value means. The advocates of this type of presentation contend that simple multiplication in presenting future lost income is particularly effective with rural juries when assessing the lost income of a young man with only the future of a farmer or farm laborer to look forward to.

(d) Whereas lay witnesses can be extremely helpful in damage cases and have often been touted by lecturers, they too can be overdone. Oftentimes, lay witnesses, supporting claims of pain and suffering and disability, give rise to the oft' cited historical cliche, "They doth protest too much." In other words, is there too much convincing going on here?

7. Demonstrative Evidence

Demonstrative evidence should be used whenever the object in issue can directly portray to the trier of fact information which words alone cannot convey. In sum, it should be used whenever available. It is a powerful tool at trial and often will break up the monotony of lengthy presentation of testimony and focus attention of the trier of fact on key issues in your case.

(a) Exhibition of Plaintiff:

(b) Photographs:

(c) Medical Exhibits:

(d) Charts, Models, Sketches, Demonstrations:

(e) Documents, Records, Mortality Tables and other Written Evidence:

(f) "Day in the Life" Videos/Movies

The need for videotape as an adjunct in proving damages stems from our inability to convey the full extent and impact of damages to six strangers in the stilted confines of the courtroom who usually have never experienced a similar injury. Although a picture is worth a thousand words, and a videotape is usually worth a thousand pictures, videotape film can still fall drastically short of portraying the full extent of a client's damages. For this reason, where the case is of sufficient magnitude to warrant it, a lawyer should consider retaining a top quality professional photographer to do the filming at his direction. The more skilled the photographer, the better the chance that the videotape will adequately portray the client's damages.

1. for purposes of admissibility, the courts generally treat videotape evidence under the same principles governing photos, movies and other demonstrative evidence; admissible if relevant and an accurate reflection of the matters portrayed. In Florida the "rule" is stated as follows:

". . . to be competent evidence, the films must be properly authenticated and shown to be a faithful representation of the subject, sound, movement or other tangible or intangible thing which they purport to reproduce. When such a showing is made to the trial court, moving picture films should be admitted under the same rules as photographs." (emphasis added).(1)

2. Whenever a lawyer realizes that he never really understood his client's damages until he visited the client in his natural habitat and saw what the client goes through on a daily basis, a lawyer should strongly consider the use of a day in the life film to overcome the difficulties in expressing his client's damages through words.

3. Be aware of the timing. A videotape presentation on damages in the trial of the case is a very dramatic moment, and one should attempt to place it in a prime time spot during the trial day or trial week. e.g., the first item of evidence when beginning a new trial day or the last bit of evidence the jury sees before they leave for the weekend on a multi-week trial.

4. In providing a foundation for the admissibility of the videotape, in most cases it is perfectly adequate to provide foundation for the admission of a videotape day-in-the-life movie into evidence by having one of plaintiff's family members observe the videotape film prior to the trial and then provide the foundation at trial by testifying that he is thoroughly familiar with the plaintiff's condition, he has previewed the videotape film, and the videotape film reasonably and accurately portrays the plaintiff's condition. That is the predicate that is normally provided for the admission of damage photographs into evidence and in accordance with the case law and evidence code that should be sufficient for the admission of videotape day-in-the-life film into evidence.

5. In videotaping a client's damages, there will be a lot of wasted footage since you may be reducing a day's filming to a 20 minute or ½ hour film when the repetition is cut out. (There is no need to document what was edited and how it was edited so long as the final product can be documented as being a reasonable and accurate portrayal of the plaintiff's condition.)

(g) Videotape Depositions: The use of videotape depositions of one or more of plaintiff's physicians should be considered for several reasons:

1. Oftentimes, it is extremely difficult to line up a physician to testify, and even when they promise to be available at a certain time, often they cannot. By videotaping one or more of the physician's depositions, a trial attorney can have the luxury of a lengthy conference immediately prior to the deposition. The attorney then has the luxury of having a witness' testimony immediately available to be inserted at any point in the trial which will require no active participation on his part. This can be very helpful to bridge the gap when the schedule of live witnesses begins to go haywire.

2. When limited use of videotaped depositions is made, a jury will often pay more attention to and be more impressed by a videotaped deposition than a live witness.

3. Caveat: If videotaped depositions are overused, they become much more monotonous and boring than live witnesses.

4. In taking the deposition, it is helpful to acknowledge the presence of the camera and ask the physician to speak to the camera s if he were speaking to the jury. This cuts the ice and absolves the awkwardness of the videotape proceeding.

5. In making use of the demonstrative exhibits at a videotaped deposition, one should check with the cameraman to see if he has completed his focusing on the demonstrative aid before allowing the witness to proceed.

8. Final Argument

Every attorney has his or her own style and that is as it should be. However, experience has shown some techniques have been more successful than others in obtaining the "big award." The following points should be covered and this guide may be helpful in structuring final argument in every case involving a profoundly injured client where a "big award" is at stake.

Explain the law of damages in connection with the liability aspect of the case.

1. Clearly describe the injury as it first appeared. This should be done in excruciating detail, particularly in a severe injury case. (Never assume that the jury recalls all aspects of the injury from the testimony).

2. Chronologically recount the acute period of treatment, the rehabilitation, the recovery and the present situation. More time should be spent in the earlier periods where the suffering is more acute.

3. Mix into the chronology of the evidence testimony of the client, lay witnesses and physicians. Also mix in exhibits, such as photos and other demonstrative evidence, when helpful for emphasis.

4. Discuss whenever possible the party's thoughts, anxieties, fears, embarrassment, anger, sorrow, self-pity and pain.

5. Do not talk dollars with the jury until they have been properly conditioned by the prior type of discussion. You may wish to mention a figure higher than you intend to ask for with reference to material objects and try to impress the jurors with the difficulty of their task in assessing damages and the paradox in our society that it is easier to value property than human losses and suffering. In enumerating elements of damages for which a claim is made, list the special damages first before the general damages.

5. Remember demonstrative evidence will be examined by the jury after your last word is spoken; refer to it freely in closing. Your last word will stay with them even after closing argument is over.

II. Damages in the Wrongful Death Case

No case is more emotional, challenging, and difficult to present than the case involving the loss of human life. There are no secret formulas to maximizing damages in a wrongful death case, no standard procedures to follow. However, there are certain methods and means of presentation that should be utilized in order to best represent your client. First and foremost, a theme must be developed; a theme that will convey to the jury the indignation, the sadness, and above all the enormity of the loss to all who knew, loved, and depended upon the decedent. Success will only be achieved when each and every juror is able to empathize with and understand the enormity of the loss of the decedent.

A. Developing Your Theme

Every wrongful death trial has a damage theme. More importantly, the theme of each case must be different to be successful. Certainly, there are tapes, videos and outlines; and poetry, songs and prose eulogizing the loss of loved ones, but your client is unique, and the theme of your case must be unique. That theme can only be developed by meeting and interviewing friends and family. When you present your case and your witnesses, the jury should feel outraged at the defendant for having caused the loss of this unique person. At the same time, they should feel the pain and emptiness of those that the decedent has left behind.

Your theme does not get developed on the morning of trial or even a week before trial. It begins at the first client interview and continues throughout the preparation and development of the case. In the wrongful death case, damages cannot be a last minute thing. Remember, look at your original notes and recall why you took this case!

B. Experience the World of the Decedent

It is impossible to communicate and convey the enormity of the loss of life without experiencing the void left by the deceased in his or her family and community. If the case involves the wrongful death of a family member, go to the home. Visit with the family at home and look through photo albums, home movies and scrapbooks. Look at Dad's sports trophies and awards or a young child's baby albums. Get Mom's recipe book, Mother's Day cards, poems. Find old love letters and notes. If you're human, the magnitude of these visits will quickly raise great sentiments for the loss of those surrounding the decedent. It is the presence of these sentiments that will make you effective in front of a jury.

C. Personally Conduct the Witness Interviews

The task of re-creating the deceased's life cannot be delegated to investigators, paralegals or other persons who will not try this case or make the closing argument to the jury. To delegate this duty is to make a cardinal mistake, because you will only receive another person's filtered input, feedback and sensitivity. This aspect of damages cannot be "watered down" or received second hand. It must be experienced by the trial lawyer. The following are a suggested list of community members and friends that should be interviewed in preparation of your case:

(1) Employers (7) Teachers

(2) Co-Workers (8) Coaches

(3) Friends (9) Sporting Team Members

(4) Clergy, Priests, Rabbi (10) Merchants

(5) Family Doctors (11) Community Leaders

(6) Neighbors

D. The "Golden Rule Versus The Platinum Rule"

Unquestionably, trial counsel cannot argue the "Golden Rule" and ask the jury how they would feel or how much money would compensate them for the loss of a loved one. However, trial counsel must and should follow the "Platinum Rule." The platinum rule is the rule that states that the family and friends of the deceased are the best means to argue your case and illicit empathy from the jury. At some point during the testimony each juror should be able to see and feel similarities in his or her own life that mirror those of the witnesses. For instance, a juror is likely to share the sentiments of a spouse who testifies about the lost enjoyment of dining out, of partaking in long walks, watching your children grow-up, or just missing their best-friend and confidant. This is the platinum rule, and when presented in this manner, trial counsel may effectively and legally put the jurors in the shoes of the decedent and his loved ones.

E. The Importance of Interviewing Damage Witnesses Before Jury Selection

It is essential that plaintiff's counsel have available a variety of damage witnesses and fully understand their employment, background, and testimony prior to jury selection. If you have interviewed 10 damage witnesses and have a familiarity with their profession, personality and lifestyle, you will be better prepared for jury selection. For instance, if one of the damage witnesses is a middle-aged school teacher in your local school system, you may want to leave a similar juror on the panel when exercising your peremptory challenges. This is a powerful opportunity for you to build credibility with the jury.

F. Explaining the Pain and Suffering of the Survivors

In some cases, the enormity of the loss is so great and incomprehensible that expert witness testimony is not helpful or even required to assist the jury in understanding the damages. This is particularly true when there are unusual or unique elements of the loss; i.e. the deceased has lost his entire family in one event or in the wrongful death of a newborn infant where bonding has not yet taken place between the family. I do not recommend that a grief expert be used in every wrongful death case. The trial lawyer, through preparation and hard work, should be able to present the enormity of the loss through testimony and argument. However, where the circumstances are unusual, difficult or particularly challenging, the consideration of a grief expert may be appropriate.

G. The Direct Examination of the Deceased's Family

The direct examination of the deceased's family is arguably the most critical aspect of your damage case; it must be handled delicately. The testimony should be powerful and as brief as possible. Overexposure to sentiment can have a dulling effect on the jury. Take for example, the Rodney King trial. In that case, the jury was appalled and horrified the first few times that it viewed the beatings. However, the impact of the beatings was greatly reduced as the defense continually replayed the video. The same can hold true for a grieving spouse or child. The effect of the testimony will be most powerful if it is brief. If the bereaved witness cries on the stand for two days, the jury will eventually become acclimated to the emotion and some of its sympathy will dissipate. Building on what we discussed earlier, the trial lawyer must be compassionate and involved in the questioning and the responses. Don't be a robot and don't regurgitate what you wrote down on your legal pad. At the same time, don't overreact. This is the time for the jury to see the family's grief, not necessarily yours.

III. Damages and the Elderly Plaintiff

Proving damages in cases involving elderly plaintiffs is challenging. Injuries to the elderly are "often discounted by doctors, insurance adjusters, and defense counsel."(2) In the majority of cases, the plaintiff is retired with a relatively short life expectancy. In many cases, the plaintiff's spouse has predeceased the plaintiff. While morally compelling, many lawyers often shy away from cases involving elderly plaintiffs because the damage aspects are too difficult to establish. This is the wrong approach to take in these cases.

A. No Injury to an Elderly Plaintiff is ever Minor

First and foremost, no injury to an elderly plaintiff should ever be regarded as minimal. Even minor injuries can be devastating.(3) As we grow older our bodies ability to withstand and recuperate from trauma decreases. An impact that may have only caused a bruise to someone in their twenty's may break a bone in an older person. Even soft tissue injuries can be life threatening to an elderly person.

In cases involving minimal economic and special damages, counsel for the elderly plaintiff should look for evidence of "aggravated liability."(4) Take for example the case of an elderly plaintiff who wanders away from a nursing home only to be discovered dead one week later in a field across from the home.(5) In this case, counsel should argue aggravated liability, stressing how unnecessary and avoidable this accident was; after all proper supervision accident and a timely and adequate response would have prevented the death.(6)

Counsel should always stress that non-economic injuries are more serious in the case of elderly plaintiffs. As we grow older we begin to lose the ability to perform those tasks that we once took for granted. We place great value on our independence and the remaining days of our lives. These are the golden years, the time to enjoy family and friends, the time to do those things we never had time for when we were younger. Any injury, even a minor injury, can rob us of the joy that comes with entering the golden years. When an elderly person is injured they often lose their remaining independence and with it their pride. A broken hip, a fractured ankle, even a sprained ankle, can rob an older person of their ability to walk, drive a car, take the bus, shop, and prevent them from getting out to play cards with their friends.

In addition, injuries may affect other conditions. An elderly person who has heart disease, diabetes, arthritis, or other common maladies, is likely to develop significant complications from an injury. Remember, you take your plaintiff as you find them, and old age with all of its complications is no exception.

B. Key Points in Representing the Elderly Plaintiff

The following are some key points to keep in mind when representing the elderly plaintiff:

1. In order to effectively represent your client, you have to get to know them. You need to know their hobbies, leisure activities, and their habits. Was the greatest joy in his or her life taking care of the grandchildren while the parents were at work? Has the injury now robbed her of the ability to care for the children, and thus, stolen away one of the treasures of growing older?

2. Solicit testimony from your client on how it feels to have someone taking care of their needs. Most elderly experience an enormous loss of independence, dignity, and self-sufficiency when they suffer an injury. In addition, they often feel as if they've become a burden on family and friends. These feelings can be emotionally, mentally, and psychologically devastating.

3. "A creative per diem calculation can often help compensate for a shortened life expectancy. Each passing day assumes greater significance to the elderly plaintiff. The fact that the plaintiff must now live every day with a painful disability exacerbates the psychological injury of feeling that life has been cut short."(7)

4. Use the testimony of friends and relatives to depict the drastic change in the plaintiff's lifestyle, mental health, and outlook on life. These witnesses can best explain the impact that the trauma had on the plaintiff.

IV. Closed Head Injuries

Closed head injuries are challenging because it is difficult to believe what we can't see. When someone walks into a courtroom with no apparent physical manifestations of an injury, it's only natural to be skeptical. Frequently, injuries to the brain manifest themselves in impairments of the higher brain functions with resulting disturbances of personality and behavior. For instance, chronic brain syndrome is often characterized by impairment of memory and intellectual functions, including comprehension, judgment, and learning.

A. Overcoming Skepticism

The key to overcoming jurors' skepticism is to objectify the injury and provide a logical explanation as to how the trauma caused the plaintiff's psychological injury. Most people, and certainly jurors, don't want to believe or don't think that they would ever develop a psychological injury as a result of an accident. The best method to overcome this common sentiment is to present an expert who will explain that injuries to the brain effect all of us differently. For instance, if each juror were exposed to the same trauma it would likely affect them all in a different manner. Some may recover completely, others may develop minor cognitive difficulties, and still others may have serious and permanent cognitive disorders. When the injury is presented in this manner it becomes less personal and the juror becomes more receptive to the claim for damages.

Your expert must find the pyschodynamic mechanism of the injury, or at least provide one. In order to overcome, the inherent mistrust of psychological damage, it is essential to have your client's mental therapist provide a detailed psycho-social assessment of your client's diminished ability to function within family, work and social relationships.

B. Important Concepts in the Closed Head Injury Case

Here are some key points to keep in mind when trying the closed head trauma case:

1. Set the stage for acceptance of the closed head injury by emphasizing the brutal physical impact which occurred. If the physical impact was slight, use your expert to testify why this particular plaintiff may have been more susceptible to the injury.

2. Have the examining physician, when applicable, take the stand first to discuss the nature of your clients physical injuries and the justification for a referral to a mental therapy professional. Physical injuries are objective and easy to comprehend. They should be used as a stepping stone for the jury to cross between the physical impact and the resulting psychological injury.

3. Have the treating mental health professional, when applicable, take the stand to discuss the objective signs of plaintiff's injuries, the basis for diagnosis, and the legitimacy, necessity and validity of treatment.

4. Introduce key behavioral witnesses such as family, friends and co-workers, to discuss the attitude and behavior of your client before and after the incident.

5. Present a neurologist to discuss your client's quantitative mental disability.

V. The Soft-Tissue Injury

Soft tissue injuries, despite their frequent occurrence, are typically undervalued by defendants, insurers, and jurors alike. To the average juror, soft-tissue injury cases typify the perceived litigation crisis. In large part this is the result of the propaganda of the insurance companies; propaganda that portrays plaintiff's claiming soft tissue injuries as fakers. Also problematic is the fact that soft-tissue injuries primarily involve the plaintiff's expression of subjective symptoms with little objective proof. However, these injuries are real and significantly affect the lives of those who suffer from these injuries. Even though these injuries do not appear in x-rays or other diagnostic testing, they can cause remitting headaches, chronic neck and shoulder pain, dizziness, muscle spasms, and a myriad of other conditions. This chronic pain often manifests itself in psychological conditions such as depression.

A. Establishing Credibility

The first step to recovering damages in the soft-tissue case is to overcome the juries belief that these injuries are not legitimate. Your first witness should establish the credibility of soft-tissue injuries. Call to the stand a rheumatologist, physiatrist, and/or orthopedist to describe the musculosketal system and to explain what a soft injury entails. For instance, when the jury hears that soft-tissue injuries often result in the stretching and tearing of muscles, ligaments, tendons, and fascia, all of which have minute nerve attachments capable of relating information, including pain, to the brain, they might start to think differently about the plaintiff's injuries.(8)

B. Explaining the Injury

After you have overcome the juries initial skepticism you present witnesses who will describe the impact that led to the injury and how it has affected the plaintiff. Your bio-mechanical expert is the best witness to provide this testimony. Don't focus on proving some discrete medical diagnosis. The trial lawyer should focus on the plaintiff's actual complaints which are sufficient to communicate the medical problem. Shifting focus in this manner lessens the plaintiff's burden of proof, which is critical in these cases where objective evidence of the injury is often lacking.

C. Key Points

The following are some key points to keep in mind when trying a soft-tissue injury case:

1. Emphasize the physical impact. If the impact looks bad, the jury is more likely to accept plaintiff's injury claim. If the physical impact was minimal, the trial lawyer must link the external event with the internal response. Expert testimony should focus on the fact that each person is affected differently by physical trauma, some may be more susceptible than others.

2.. Establish at the out-set that soft-tissue injuries, by their very nature, rarely lead to objective evidence. The trial lawyer should be able to establish this truth through the plaintiff's expert as well as the defendant's expert.

4. If there is no persuasive physical evidence of the injury, consider the use of a Bio-mechanical Engineer to discuss what happens to the body when it undergoes a physical impact like the one experienced by your client. This testimony should include demonstrative exhibits that portray how the physical impact affected the body structures.

5. In cases involving delayed onset, use a rheumatologist, physiatrist and/or orthopedist to demonstrate how the initial injury to the musculosketal system evolves and manifests itself at a later date.

6. Seek out witnesses from each area of the client's life to demonstrate the effect that the accident has had on the client. Use before and after witnesses to counter attacks of feigning or maligning. While your expert may be able to testify to what the plaintiff has complained about, none of the doctors really knew the plaintiff before the accident.

7. Emphasize the drastic effect that chronic pain can have on the plaintiff's employment, as well as his or her relationship with family and friends. For instance, with regard to employment, if the plaintiff was a court reporter who now has occasional cramping in his or her hand and neck, their economic future may be in jeopardy.

VI. Conclusion

Difficult damage cases are difficult because juries are skeptical of the plaintiff's injury, unable to comprehend the injury, or unable to empathize with the plaintiff's loss. The task of the trial lawyer is to put six jurors in the shoes of your plaintiff or the plaintiff's representative. If every juror on your panel suffered the injury or loss suffered by the plaintiff the trial lawyer's job would be much easier. However, through preparation and the proper mode of presentation any lawyer can effectively increase a damage award. With the right tools and insights the difficult damage case becomes less difficult and more valuable to counsel and the plaintiff.

1. See, Gulf Life Insurance Company v. Stossel, 179 So. 163 (Fla. 1938).

2. John A. Day, " Elderly Personal Injury Victims," Trial v.24 n3 28, 31 (March 1988).

3. Id.

4. Jules B. Olsman, " Protecting the Elderly: Proving Damages for Elderly Plaintiffs," Trial V27 p. 35 (April 1991).

5. Id.

6. Jules B. Olsman, " Protecting the Elderly: Proving Damages for Elderly Plaintiffs," Trial V27 p. 35 (April 1991).

7. Id. at 37.

8. James Kruger, " Functional Overlay in the Soft Tissue Injury," National College of Advocacy: Recovering for Psychological Injuries: What You Don't Know Can Hurt Your Client. Nov. 2-3 1990.