How To Maximize Compensatory Damages in a Personal Injury Case

Sunday, August 8, 1999

ABA Tort and Insurance Practice Section
1999 Annual Meeting

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

Your client possesses the ability to positively impact the verdict in a personal injury case. There are certain ways your client, expert witnesses, family, friends, and other witnesses, and attention-grabbing exhibits can improve your client's recovery of compensatory damages.

Presenting your client to the jury
  • You make your client the star of the case by personalizing him or her at the beginning of voir dire and carrying that forward throughout the trial. Every communication and gesture should include the star. Studies show that most jurors have preconceived notions that many plaintiffs in civil litigation personal injury cases are grasping and greedy because they have rejected that juror's middle class values. They view plaintiffs as simply looking for a windfall. Therefore, you must bring your client back into the jury's middle class consciousness.

Communicating with the Jury
  • Juror Perceptions. Jurors like and identify with people like themselves. They like people who think like they do. By knowing that they like and what they identify with, you can tailor your client, dress, choice of analogy, and theme of the case to the jury. This is the link or connection between the jury and the client. Example: using baseball or football analogies to get a point across.

    The more closely your client resembles the jurors, the more likely your success at bringing the client back into the jury's middle class consciousness. The faster you can re-focus the jury's attention away from their preconceived notions of who plaintiffs are and what their motives are, the more likely a fair verdict which your client deserves will be returned.

  • People are More Easily Influenced by People They Like. Jurors award damages or acquit people they like. They convict people they do not like. You and your client must be attractive to the jury. All other things being close to equal, the jurors' unconscious response will go to the side (lawyer, client, witnesses) they like. They will listen more closely, and not shut out or turn off the witness or attorney.

  • People are More Easily Influenced by People They Perceive as Credible. It makes no difference whether the client is actually credible if the jurors believe the client is credible. Personal appearance, behavioral patterns, and speech and language techniques are all credibility factors.

  • The Perception of Credibility is Influenced by Personal Attributes.

    Personal attributes include delivery, physical appearance and likability.

Preparing the Client for his Big Day

General Rules

  • Your client should be familiar with the courtroom. Take him there before trial, if possible. Let him sit in the witness chair, ask some questions while he is in the chair, show him where the judge and jury will be, where you will be, etc. Also be sure that the client knows distances in the courtroom. Measure distances so he will know if things are 10 or 15 feet apart.

  • Dress -- your client should dress naturally. He or she must be comfortable. They should not overdress or underdress, otherwise they will appear insincere.

  • Instruct the client to stand erect, hold the right hand high and forcefully say "I do" when sworn.

  • If the client will have to place a position on drawings, diagrams, maps, etc., have them make large circles instead of small markings. This makes it harder to cross-examine about a precise position.

  • Always have the client practice using any demonstrative evidence or practice drawing scenes before the trial.

  • Finally, you must thoroughly prepare your client. This will require several meetings prior to depositions and trial. There are three important things in the minds of jurors: First, what the client actually says. Second, whether the client is being truthful. And third, does the client really know what he is talking about?

  • Remember, you must present your case clearly, expeditiously, and in a manner that is not tedious to the jurors. The ability of both you and your client to communicate to the jury will determine the success of the direct examination.

Telling the Story
  • While there is no "right" order of questions, when dealing with an occurrence, ask questions in chronological order. First, ask questions which elicit description, then ask questions which give actions or conduct.

  • Another decision to be made is whether to present liability or damages first. One method to help determine which should go first is "flashback". Start with the person's condition now, flashback to how the injury occurred, then bring the witness up to date. Each case is different. Your decision should be based upon what order will best convince the jury and best present your client.

  • To build credibility with the jury, lay the foundation with each witness of who, where, when and what events occurred. The jurors should hear the focus of your witness's story immediately.

Content
  • Direct examination should contain the elements that prove your theory of the case. It should also include elements that eliminate the opponent's theory of the case. Third, it should always highlight personal features with which the jury can identify.

  • Allow your client to explain and describe. Help the client clarify explanations by making it sound as if you, rather than the jury, did not understand. Example: "What did you mean when you said..."

  • The client should give general descriptions, painting a picture, but avoiding excessive detail. Allow the cross-examiner to get exact distances, time, details, etc. If plaintiff's counsel elicits exact details, then it will give the cross-examiner more ammunition for cross.

Non-Verbal Behavior

Direct examination of your client is more than verbal questions and answers. It also includes non-verbal behavior.

  • Eye contact -- the client should have eye contact with both the jury and judge as well as the questioner. Counsel should maintain eye contact with the client.

  • Courtroom position and movement -- in direct examination, the client is the focus of the jurors' attention. Position yourself, if the judge allows you, so that the client must look at the jury when looking at you. You should be in the background; the spotlight is on the client.

  • Physical contact -- touch your clients, lean toward your clients when talking to them, not away from your client; smile; eye contact. Show the jury that you like your clients. Building the Perception of Credibility

  • Trustworthiness. Trustworthiness is the giving of information without bias -- the client is fair and truthful. If the jury does not trust you or your client, they will consider you fake and insincere. Before they can trust you, you must trust them - you must have faith in the jury to make a good and intelligent decision. Besides being a trusting individual, you must also present your case in an ethical, fair, and unbiased way. Trustworthiness also includes the perception of sincerity and honesty. We give sincere people greater leeway.

  • Dynamism. Dynamism is how forceful, empathetic, bold, or active a person is or appears to be. Dynamic qualities include the ability to communicate actual emotions or feelings. It includes vocal cues. It means the direct association with overall feelings about the case. It is not the recreating of a mood, but the actual feeling of the mood. It must be real feelings, not an act. The Use of Before and After Witnesses, Expert Witnesses, &

Exhibits Before and After Witnesses
  • Family Members. These persons know the specific ins and outs of your client better than anyone else. They can attest to the daily activities of your client before the injuries were sustained and they can also affirm that those injuries have led to dramatic changes in your client's life. Testimony from your client's wife, husband, children, and other loved ones can influence jurors and humanize your client.

  • Family Friends. Family friends also have similar potential to impact the verdict in your client's case. They are also familiar with the daily activities of your client and can verify that your client's life is not the same as before the accident. Family friends can testify that since the injuries, your client's life is markedly different.

  • Clergy. If your client maintains a religious affiliation with a local church, synagogue, or temple, the pastor, rabbi, or clergyman of that institution also can testify regarding your client. The credibility of such a witness magnifies your client's case and again humanizes your client.

  • Neighbors/Shopkeepers/Merchants. Individuals in your client's neighborhood or town can also attest to the differences in your client's life since the injuries were sustained. They can describe the differences in your client's daily life, and can provide a third-party, seemingly more objective perspective on your client.

Use of Expert Witnesses

Expert witnesses, with their combination of area specialization and extensive training, experience, and education, heighten the credibility of your client's case. Their testimony is not only essential but highly influential to the award of maximum compensatory damages in your personal injury case.

  • Economists. Economists will testify to your client's loss of earning capacity after the injury. An economist can calculate the present-day value of future medical costs and determine economic losses. Within these economic losses, an economist will specify the amount of medical losses and earning losses, as well as the value of the loss of household services. Included in your economist expert's testimony should be the amount of lost wages, fringe benefits, and household services. Make sure the work life-expectancy figure is incorporated in these calculations. Depending upon the jurisdiction, this figure may be decreased to present-day value.

  • Vocational Rehabilitation Experts. Your vocational rehabilitation expert can determine what jobs your client can perform at certain rates post-accident. Depending upon the level of disability (total or partial), this expert will testify to your client's employment limitations and how your client's disabilities have decreased his vocational options.

  • Grief Experts. Retain a psychologist or psychiatrist to testify as an expert witness regarding your client's emotional distress and grief. This expert can also attest to the effect your client's injuries have had on family and friends. This kind of testimony from an expert witness on grief and emotional trauma will personalize your client and allow the jury to empathize with your client and your client's family.

  • Jury Consultants. Use jury consultants in your efforts to pick the members of your jury. Jury consultants can conduct community attitude surveys to determine the sentiments of those in the general public. These results are important to consider in your pursuit of recovery for compensatory damages for your client. Jury consultants can also supply you with written jury questions to use during voir dire of the jury pool and questioning. They can also conduct mock trials that incorporate the issues from your case and make determinations on possible outcomes.

Exhibits
  • Medical Exhibits.
    The use of exhibits is crucial in providing visual depictions of your client's injuries and the subsequent changes in your client's life. Blow-up pictures of actual injuries and medical illustrations of these injuries will aid the jury in identifying with your client's case. Exhibits are an effective and dramatic way to illustrate to the jury your client's injuries.

  • Reverse Printing of X-rays.
    Although rarely used, reverse printing of X-rays can also illustrate your client's injuries and provide a more visual image of them. In these X-rays, the original black portion of the X-ray is changed to white, and the white portion to black. Often times, the X-rays are then colorized to further illustrate the injuries.

  • Photos & Memorabilia.
    Photographs and other types of memorabilia will demonstrate to the jury who your client is and illustrate your client's life. Using trophies, awards, and commendations will heighten your client's credibility and further humanize your client to the jury. Jurors like to see a client who has been honored for activities and recognized by others for contributions to the community, etc.

  • Day in the Life Film.
    A Day in the Life film of your client can provide an excellent documentary of your client's daily activities and trials and tribulations. This film can show any physical limitations your client suffers as a result of the injuries and can exhibit to the jury any difficulty your client has in conducting life now that life has changed.

The overall purpose of the use of before and after witnesses, expert witnesses, and exhibits is to have the jury identify and empathize with your client. These witnesses can humanize your client and make your client's injuries more real to the jury. The recovery of maximum compensatory damages becomes more likely when the jury identifies with your client.