[Reprinted with permission of TRIAL (September 2005) Copyright American Association for Justice]
Few cases present as many problems but reap as many rewards as those involving the death of a child. It may be difficult to get special damages because children often have no wage loss. If death was sudden, medical expenses may be minimal. State law may cap damages or limit recovery to the value of the loss of the child's relationship (as opposed to the child's pain and suffering and the surviving family's grief).
These cases are very difficult on a personal level because the death of a child evokes strong emotions. It defies our ingrained understanding of the natural order of life: We are not supposed to outlive our children. Our identities are tied to our children. If you, as an advocate for the surviving family, do not find these cases to be gut-wrenching, you are probably not the best lawyer for the case.
Why expend time, money, heart, soul, and mind on these cases? Because the personal rewards are great in helping the surviving family get answers, justice, and some closure. Doing this requires the lawyer to carefully search out the facts—what I will call the "nuts and bolts"—and present the case in the most persuasive manner possible (which varies depending on the advocate).
This article is limited in scope because state laws vary. I will focus on the element of damages that the surviving family can recover in most states—generally speaking, the value of the loss of the relationship with a child.
Aristotle said that "persuasion is achieved by the speaker's personal character when the speech is so spoken as to make us think him credible." While I think he was a bit vague about the essence of persuasion, it is difficult to argue with his concept. I believe that one character trait—empathy—is more important than any other in convincing a jury to award damages in a child death case. If you, as an advocate, cannot feel the loss caused by the death of a child, persuading the jury to award full and fair damages to the family will be a great challenge.
Each lawyer brings different styles and life experiences to the courtroom. Some are better equipped than others to bring to the jury what I call "empathetic advocacy." I believe I became a much better advocate in child death cases after I became a parent because I then was able to appreciate fully the joy a child brings to life. There is a great deal that you can do to show you feel a client's loss, but you must be careful not to go too far, or the jury might think you are trying to tug at their heartstrings.
‘Nuts and bolts'
Know the child. At the expense of stating the obvious, you cannot obtain full justice for your clients without knowing the child well. Developing an appreciation for who the child was is difficult and challenging. To learn all you can about the child, be sure to obtain
- all health records from birth. Use them to prove that the child would have lived a long life even if the defense does not make an issue of longevity. These records may also contain statements that reflect favorably (or maybe otherwise) on the child's relationship with the parents. Consider getting the parents' health records, as they may be relevant to the child's life expectancy as well.
- all school records, including attendance, grades, IQ test results, other standardized test scores, awards and recognitions, and records of extracurricular activities such as clubs, sports, or student government. Both the parents and the school may have some of these.
- employment records, if applicable.
- documentation of the child's activities such as church, sports, clubs, and other social organizations (like Boy or Girl Scouts).
- handmade items such as birthday cards, art projects, gifts, and other personal mementos.
- funeral records, including the service program, bills, transcripts, video- or audiotapes, and photograph collages.
- records of arrest, crimes, and those from juvenile detention centers. It is important to know the bad as well as the good. A motion in limine may keep this prejudicial information from the jury.
- photographs and videotapes of the child. Look to parents, relatives, parents of the child's friends and teammates, and anyone else who may have videotaped a youth sporting event, scout meeting, church event, or birthday party. Photographs are very important, and making an extra effort to obtain them will prove worthwhile at trial. Photograph the child's toys and home, room, backyard, school, church, and anywhere else the child spent time.
Know the witnesses. A checklist of witnesses to consider should include
A checklist of witnesses to consider should include
- aunts, uncles, and other relatives.
- brothers and sisters. If you have a young sibling testify, jurors may think you are trying to manipulate their emotions or that you are harming the witness by making him or her recall such a traumatic event on the stand. Say to the jury during voir dire: "Mary is Billy's little sister. As Billy's sister, she has a claim for the loss of Billy. The only way I can properly show you what this loss means to Mary is to call her to the stand so she can tell you about her loss. Will it bother or offend anyone that I have to have this young girl come to court and tell you about how she feels?"
- teachers (school and church).
- neighbors and friends.
- health care providers.
- mental health care professionals (some jurisdictions allow a therapist to testify about what the surviving family member has lost).
- economists. Some economists calculate the statistical value of the "yearly loss of enjoyment" to a parent for a lost child—which, according to a somewhat tortured analysis, is "$54,200 per year for an anonymous individual."
On one hand, an economist can give the jury some solid economic data, which the jury can use to calculate an award. On the other hand, it can seem offensive to assign a monetary value to a child's contribution to household services and the like. Each advocate has to weigh the risks and benefits of arguing that the value of a child's life is subject to economic analysis.
If at all possible, you should personally interview each witness. If time does not permit this, an experienced legal assistant or investigator can meet with some witnesses. During these meetings, seek out vignettes, rather than lists of words describing the child. One little story is worth more than a thousand descriptive words and maybe even more than a picture.
Moreover, vignettes can provide powerful anchors for damages themes. For example, during a visit to a client's home, I was perplexed when the father said that clean windows and walls in his home made him sad. He then showed me his late daughter's framed school project on his bedroom wall. Along with a small handprint, it included this familiar verse:
Sometimes you may get discouraged
Because I am so small
And always leave fingerprints
On furniture, windows, and walls.
But everyday I'm growing up
And soon I'll be so tall
That all those little fingerprints
Will be hard to recall.
So here's a special handprint
Just so you can say
Here's how my fingers looked
When I placed them here today.
In another case, I saw a mother cry while washing a load of clothes. She told me that before her recently deceased son died, he had played Little League baseball and that she had spent most nights in the laundry room trying to scrub the grass stains out of his pants. Every time she washed clothes, she was reminded of this and how she liked to watch her son play a game he so dearly loved. This vignette provided a compelling example in my closing argument about how the loss would affect her on a daily basis for the rest of her life.
Look for humorous vignettes about the child. Funny stories personalize the child and show a valued character trait the family has lost. They also provide a welcome reprieve to jurors who have been hearing sad stories and may think you are manipulating their emotions.
Personally spend time (and a lot of it) with the child's family members at their home. Reading a legal assistant's or investigator's memos of interviews or interviewing the family in your law office conference room can never instill an understanding of how family members actually feel about the loss of a child. I have never left a client's home without developing a truer understanding of what the child meant to the family or uncovering some valuable vignettes.
For example, I once learned that the yellow paint I saw on the parents' bed frame was from the time that their late daughter climbed up on the bed to surprise her mom with a finger painting she had made for Mother's Day. The parents could not bring themselves to remove this daily reminder of their lost child.
Find out what potential witnesses have to say and how they will say it. An extremely emotional witness may cause the jury to believe you are trying to pull at their heartstrings. At the other extreme, a witness testifying without emotion may detract from the severity of the loss.
Lawyers have many philosophies about the level of emotion witnesses should display. Some encourage witnesses to be emotional while others advise them to mask their feelings. I believe that telling witnesses to alter the expression of their emotions is hazardous. Jurors can sense when witnesses are acting unnaturally, and this may affect the witnesses' credibility.
Not all child death cases are alike. If the deceased child had a disability, or was an infant or adult, you may need to make special arguments to get full compensation for your clients.
Death of a disabled child. When a child with a disability dies, a common defense tactic is to suggest that the case is worth less than one involving the death of a so-called normal or healthy child. Opposing counsel may claim that the child would not have had a full life expectancy, caring for the child was a chore, and the level of contribution to the family would have been less than that of a healthy child.
I argue to juries that the loss of a disabled child is felt more keenly by the family than the loss of a healthy child. Healthy children become increasingly independent until they set out on their own. Most parents of healthy children develop a sense of pride and self-worth from nurturing a child to adulthood. Parents of healthy children enjoy a limited number of years seeing the world through a child's eyes. While the relationship between a healthy child and the rest of the family continues to be of great value, it may not be as close as the relationship with a disabled child.
Children with disabilities often lack or are slower to gain the independence healthy children achieve. A physically disabled child may need more help from the family for daily care and transportation. A brain-damaged child may never obtain complete independence.
Parents of a disabled child develop a sense of pride and self-worth caring for him or her and look forward to a very close lifetime relationship. I have used Emily Perl Kingsley's Welcome to Holland  to help juries understand the special value of parenting a child who has a disability. The story compares the birth of a disabled child to a traveler's long-dreamed-about vacation to Italy. En route to Italy, the traveler learns she is going to Holland instead. This news initially is disappointing to the traveler. But eventually she learns that Holland isn't "a horrible, disgusting, filthy place, full of pestilence, famine, and disease." In fact, Holland has windmills and tulips and other things of great value.
Death of an adult child. Defense attorneys may claim that the loss of an adult child is of less value than the loss of a minor child. When the child becomes an adult, the parent's role changes from nurturer to friend. I argue that the loss of an adult child is twofold: The parents have both lost a child and their dearest friend.
By the time a child has reached adulthood, parents have made an immense emotional and financial investment in him or her. Consequently, they feel a sense of pride and accomplishment as the adult child completes his or her education, establishes a career, and develops adult relationships. When that life has not run its anticipated span, parents often experience a sense of abandonment and futility. They might question their own purpose in life, since everything they invested in their child now seems for naught.
Parents who lose an adult child may also have lost the base of emotional, financial, and physical support they would have had in their retirement years. I have used the children's book Love You Forever, by Robert Munsch, to illustrate this. A mother rocks her baby boy and sings to him:
I'll love you forever,
I'll like you for always,
As long as I'm living
My baby you'll be. 
The story follows the stages of the boy's life; the mother continues to sing this song to her son as he grows. In the end, the mother becomes too old and sick to finish the song, and the son takes her and rocks her, singing the song but ending it with "My Mommy you'll be."
Death of an infant. Defense lawyers often try to argue the death of an infant is worth less than that of an older child because the relationship lasted only minutes, hours, or days. You can counter this by showing that the parents' relationship with the child began long before the child was born. Describe the couple's plans to have a child and their excitement in learning of the pregnancy. Show photos of the happy expectant parents, video clips from baby showers, and ultrasound pictures. Talk about how the father-to-be sang to the baby and held the mother-to-be's stomach. Show the baby announcement.
Closing argument is the most difficult part of the trial. If you truly feel the loss of the child, it will be painful to talk about throughout the trial, but if you do not carry the feeling into the closing argument, you will be unable to make the jury feel the loss, and the verdict will reflect something less than full and complete justice. This is the point at which your empathetic advocacy is put to its greatest test.
During closing argument, the vignettes you sought and brought to life at trial are put to their best use because they allow jurors to understand who the child was and the severity of the family's loss.
The best vignettes are those that show how members of the family will be reminded of the loss for the rest of their lives. For example, a father told the jury how he looked forward to coming home from work each day because his six-year-old daughter (with her gap-toothed smile) would run to him, give him a huge hug and kiss, and say "I love you, Daddy." Now he comes home to silence every single day.
I always read from something in print, usually a quote about parents' ties to their child, a story, poem, or a newspaper article. I often refer to an article written by a man who lost a son.  The author wrote, "When your child dies, nothing seems so consequential." He explained how he saw on the television news a father, mother, and their children in a boat fleeing flood waters that took their home and town. The father in the boat tearfully said that he had lost everything. The author thought: "No, sir, you have everything, and it is with you in that boat."
The author went on to describe a newspaper photo of a father kneeling in the snow outside his house, which had burned down. His wife and children, who had just returned, were embracing him. The author wrote: "Never in my life had I envied anyone more than I did that man."
What tools do you use to place a dollar value on the loss of a child? Some advocates compare it to the value of a famous painting, valuable car, racehorse, or salary of a professional athlete. On one hand, these analogies provide a benchmark by which to judge the value of a loss. On the other, they denigrate the inherent value of children by comparing them to common commodities that are bought and sold on the open market. Where permitted, it may be effective to ask the jury to award a certain amount for each day for the rest of the parents' lives.
Another tactic is to talk about the money that society readily pays to safeguard children each year. Point out how millions of dollars are spent on child car seat safety and pediatric medicines. Refer to individual cases. For example, no one would suggest that the hundreds of thousands of dollars and hours of human capital expended to save Jessica McClure, the little girl who became trapped in a Texas well in 1987, was a waste. Then ask, "Isn't it reasonable to conclude that the loss of a child's life is worth at least as much as society is willing to pay to save a child?"
Most state laws require the jury to deduct from its verdict the amount of money that the family would have had to expend to raise a child. You can use this law to your advantage by talking about the significance of the loss (this opportunity is greatly enhanced by the defense if it spends much time on these expenses). Provide the jury with your own list of things they will have to deduct because they will no longer have to buy them: a confirmation dress or prom gown for their daughter; a Christmas toy each year for their son; graduation gifts; wedding presents; gifts for grandchildren they will never have.
Obtaining full justice for the loss of a child is difficult for many reasons. Empathic advocacy and a thorough investigation of the child's relationships with the family help make these terribly tragic cases deeply rewarding for the committed advocate.
1. Stephen T. Riley, Calculating the Unthinkable, PA. L. WKLY., Apr. 29, 1996, at 13.
2. Emily Perl Kingsley, Welcome to Holland (1987) (published several times in the Dear Abby column) available at http://www.our-kids.org/Archives/Holland.html
3. The Compassionate Friends, The Death of an Adult Child, http://www.compassionatefriends.org/brochures/death_of_an_adult_child.aspx
4. ROBERT MUNSCH, LOVE YOU FOREVER (1986).
5. Ed Murphy, A Father No Longer, He Measures All of Life Against His Son's Loss, MINNEAPOLIS STAR & TRIB., June 21, 1998, at 23A.
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