In our plaintiff’s personal injury trials, we as trial lawyers, have a duty to teach the jurors how to put a price on the plaintiff’s injury. We want to begin this conversation in our opening statement. To do this we need to first let our jurors know why it is important that they understand why you are going to tell them about “harms and losses”. The reason we tell our jurors this is so that they can start thinking about all the harms and losses as isolated incidents. If we take it for granted that they understand why we are going through the harms and losses, and thus don’t tell the jurors why, then they will simply assume we are just pushing for sympathy. While the jurors may be inclined to grant money for sympathy they will be far better prepared to calculate damages if they can reduce each harm and loss to a specific dollar figure. We thus provide an formula for them to quantify damages.
Thus when we begin to tell the jurors about harms and losses we can tell them that these are the items that they will consider in deciding how much money to allow for Plaintiff’s injuries. Tell the jurors directly that they shouldn’t give money based on sympathy as this is not a “harm or loss”, in this way you build credibility with jurors. Let them know that they shouldn’t be taking into account any other considerations other than harms and losses. You should tell the jurors that not only does the judge agree that only harms and losses should be considered but so does the defense attorney. In this way your jurors will not doubt your statement as to this fact. After you discuss these harms and losses and the importance of only taking harms and losses into consideration in determining how much money to allow you need to then go on to instruct your jurors as to how the Defendant’s actions caused each injury.
Don’t assume that the jurors will automatically understand how the defendant’s action caused the plaintiff’s injury. Know that the defense is going to try to obscure this line of causation between defendant’s actions and plaintiff’s injury. Thus, before the Defense gets the opportunity to put on their case you need to begin the demonstration of how the defendant’s actions lead proximately to the plaintiff’s injury. How you explain this will depend on how the injury in your case occurred. Let’s say that for instance your client has brain damage following a car accident. It isn’t sufficient just to say that before the accident he was fine and now he has brain damage. You need to go into detail and explain each step in the chain of causation. To do this you may need an expert to present this information. Preferably an expert who communicates well with laypersons. Many experts don’t have this ability so find one who does. Your expert can explain how for instance the force on the rear of the vehicle creates a whiplash effect in the neck and spine. The whiplash of the head moving forward then may cause the brain to move inside of the skull. The brain’s impact against the front of the skull then results in damage to a specific part of the brain. You can then go on to show that the types of symptoms the plaintiff is experiencing are the same type of symptoms that result from a brain injury caused ordinarily caused by these exact circumstances. When you present this information in your opening statement you create a primacy of belief in the listener’s mind as to causation. This hinders the Defense’s ability to argue in trial that the brain damage was a result of something else. Perhaps they argue that the Plaintiff already had this brain damage, well the jurors will have already heard your causation explanation, and thus jurors will have already formed and solidified an opinion on the matter which the Defense will now have to overcome.
Brilliant trial consultant David Ball suggests using a high school physics teacher to explain the chain of causation. This is very smart for a couple of reasons. For one thing, a high school physics teacher will not charge the enormous amount you would otherwise pay to other experts. The other benefit of the high school physics teacher is that these teachers are accustomed to teaching. Many experts, as stated above, are not well versed in communicating ideas to jurors or laypersons. High school teachers have to teach to high school kids each and every day. Thus they are great at this type of communication. Furthermore, high school teachers have credibility with jurors. As always, anytime you can use visual examples coupled with testimony your ability to communicate and be understood is greatly enhanced. Thus when you are explaining the chain of causation use simple exhibits. When using Exhibits you should first explain to the jurors the idea you want to convey. After you offer this explanation then break out the exhibits and walk the jurors through these exhibits. If the jurors are looking at your exhibits while you are talking they will tend to ignore what is coming out of your mouth as they try to interpret the exhibits at the same time. Thus explain first and then show the exhibits.
If you are dealing with a wrongful death case then you will take your causation explanation further than you will for an ordinary injury. With a death case you will first explain to the jurors the step by step progression of how the act of the defendant caused the death of the plaintiff. After this thorough explanation you will continue on to explain how the death of the plaintiff now causes harm to his or her survivors.
After you explain the line of causation for each injury you will then go on to explain the significance of each injury. For instance, if your client was injured in such a way that she has lost mobility in her arm, don’t just leave it at that. Obviously jurors can understand generally the importance of having a functional arm in one’s life. However, you really want to impress upon the jurors the impact this has not only on a person’s lifestyle but upon your client’s lifestyle in particular. Say for instance that your same client has always been a loving spouse and she has been the one to take care of the housework, laundry, dishes, cooking for her husband and the like. This is your opportunity to tell the jurors how it is now difficult for her to accomplish these same tasks. That she can no longer care for her husband and how this makes her feel like an unworthy spouse. Perhaps she had a love for gardening. Explain how she can no longer spend her weekends in the garden because it is just not really possible for her to enjoy this activity with one arm’s use.
David Ball and Ernie Teitel advise that that you, as counsel, spend a lot of time in your client’s home. Spend days with the family. Once you become intimately involved in your client’s existence you can truly advocate for them. So don’t just spend time talking with your client. Actually go to their homes, spend time with our client, get an intimate view of your client’s life. Then you will be able to express your client’s loss.
Just as you undermined the negligence defenses in your opening you will now do the same thing with potential damages defenses. So for example, going back to the client with the injured arm. If you think that the defense may try to argue that the symptoms that your client is experiencing are consistent with carpel tunnel syndrome and thus not a result of Defendant’s actions you will want to undermine this defense right away. You can say, “that before coming to trial we had to determine if the injury to our client’s arm was not a result of something else besides the incident caused by defendant. We thus had our client examined by Dr. X to determine what other causes there could be. Dr. X will tell you that he had to determine if Carpel Tunnel could have caused these injuries. Dr. Ex will explain that Carpel Tunnel could not have caused this injury as the injury includes the arm and shoulder region. Carpel Tunnel does not cause damage to the shoulder region. Thus we ruled that cause out.” When you do this you draw the sting ahead of time. If you wait until the defense brings up this alternate cause it appears as though you didn’t have the foresight to anticipate this alternate cause. Now you are on the defensive. However, when you tell your jurors that you considered these alternate causes before coming to trial the jurors now see that you thoroughly considered these issues before deciding to come to trial and then decided that it still makes sense to go to trial and thus these issues must not be substantial.
After you complete the task of explaining to your jurors how each harm and loss impacts your client’s life you can then go on to talk about what can be done to help the client. To do this you are going to want to talk about past treatment as well as current and future treatment needed to get your client as nearly as possible back to the station enjoyed before the injury. What you are likely going to want to do here is employ an expert who can prepare a minimum life care plan. This is a plan that explains what expenses will be necessary for your client to receive adequate care for the rest of his or her life. The reason we call this is a “minimum life care plan” is because it is a base line. It is the minimum humane level of adequate care needed. You can later ask for two or three times the value of the minimum life care plan. In order to prepare this life care plan it will be necessary for your expert to estimate how many more years your client will in fact live. Point out to the jurors the statics which show that your client is likely to live beyond the lifespan indicated on the official life expectancy tables. Point out that your client will have zero resources beyond that date if the jurors only allow enough money to provide up to the anticipated remaining years per the life expectancy table. Explain how frightening it can be to know that your resources will deplete at a certain year knowing that you will be left helpless if you as the plaintiff outlive that expectancy. Thus the jurors should award many years past those indicated in the life expectancy tables.
It may be important to bring a geriatrics expert in to assist in preparing the life care plan. These experts can explain the additional costs incurred as injured individuals age. These individuals have problems compounded more so than those of ordinary aging individuals. A geriatrics expert can explain what these complications are and what treatment is necessary to care for these additional complications. This expert can show that the plaintiff’s needs will dramatically increase with old age. This causes the price of the life care plan to increase dramatically.
Now of course remember that a big part of what you are asking for in trial is that the jurors allow money for what cannot be fixed or helped. Modern medicine is only so good. Many problems can be treated but not cured. Some injuries cannot even be treated. The jurors need to understand that this is likely the biggest injury of all. This is money for pain. Ideally you will have done a good job in voir dire of excusing jurors who will not allow money for non-economic injuries. Lastly, you can touch on the pain and anguish your client has had to undergo up to date. Point out that it has been months if not years since the injury. Your client has been seeking justice for a long time without remedy. The jurors can provide money for this anguish bestowed onto plaintiff for this interim period.
This is a general outline for discussing causation and damages in opening. I wrote this article for my, Eric Roy, and my staff’s benefit. The information used to draft this article comes from brilliant trial consultant David Ball. He and Don Keenan are foremost authorities on modern plaintiff’s personal injury trial practice. They have written books which can provide you with an enormous amount of information. See David Ball’s book, Damages, for starters. These two lecture around the country on these topics.