Paul Luvera, The Daily Record Newswire
Everyone has different ideas about how to prepare for damages and conceive of damage arguments. Here's my general viewpoint of how to approach damages:
- Eliminate limiting fears
The first step is to think about the case without any limiting fears or conditions. If you allow yourself to be distracted by outcomes in other cases, you are putting a limit on the potential verdict in this one. Rid your mind of damage verdicts or previous case outcomes. They were determined by the lawyers, the facts and the clients in those particular suits. This is a new case.
Don't focus on or anchor in your mind negative statements or thoughts about limited verdict ranges, or even allow the information to remain in your thinking. You have to disengage absolutely from limited results of other lawyers.
- Become the injured party in your imagination
You must get to know your client and situation as deeply as possible. You need to imagine life with their injuries, now and into the future. For example, in a case of a child's shoulder dystocia, spend time learning and watching the impact of the injury. Think about all the daily activities of the child at that point in her life: eating, dressing, running, playing, swinging on a swing (you hold the rope with two hands), etc.
Now imagine the first year of school and daily activities. How will the injuries impact the child? What about meeting new children for the first time, school activities, playground activities, carrying books or a lunchbox, etc.?
Next, imagine advanced grades and the changes that come with being a teenager and college student. Think about what's important to an adolescent of dating age with the injury. What about marrying, having children, and growing old? Think about the impact of the injury not merely in a clinical sense, but entirely through the eyes of the child and her personal experiences, from childhood to old age.
It's not the medicine, nor the medical text's literature about the injury that matters most at trial. What we care about is how the hurt impacts the child in the real world, personally, socially and mentally, over a lifetime.
This process is a form of role reversal from psychodrama concepts. Rid your mind of lawyer considerations, legal proof, medical correctness, intellectual issues and think like the injured child and the jurors listening to the practical consequences of the injury. The jurors want to know what all of this really means on a personal level, and they are the ones who vote, not the judge or opposing counsel.
- Deal with pre-existing ideas about injuries
There will be attitudes that "time heals all wounds" and the child is lucky it happened now, because over time he will get used to it. Other jurors might feel there are lots of veterans, for example, who have worse injuries and get along just fine.
Deal with all these negative attitudes in jury selection and in your opening. Face the issues head on and be ready with examples. For instance, do the jurors really think a person with an ugly birthmark gets used to it over time when every new meeting of someone else is a new challenge? He might learn to put on a good face, but deep inside it is an open wound. He might learn to get around the injury from a functional standpoint (dressing, etc.), but he never learns to get around it from a mental standpoint, and that - not physical limitation - is where the damages lie: what the injury does to a person's self-image. This is the very area no doctor can measure and no test can validate.
My approach to damages is to keep ongoing notes of ideas, continually spending time thinking about it, being alert for anything I read or see that impacts the case, and looking to people who might give me ideas.
What I don't do is pay any attention to other cases. I put myself in the jury box and try to think the way the jurors do.
-----
Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.
Published: Thu, Jan 14, 2016
