Posted with permission of TRIAL (June 2005)
Copyright The Association of Trial Lawyers of America
One day, a young associate was trying to determine the value of a case involving a client who had lost her arm in a horrific motor vehicle crash. The associate, unsure how to place a value on such a significant loss, consulted a senior partner in the firm. The associate explained the injury and asked the senior partner what she thought case was worth. The partner replied, "Did she play the violin?"
The moral of the story is that each case is unique and that damages are often highly influenced by intangible factors, better known as non-economic damages.
Non-economic damages compensate clients for pain, suffering, mental anguish, and loss of companionship and consortium. Persuading a jury to award these damages is often difficult. When jurors cannot see an injury and have not personally experienced such a loss, they often don't believe that the client's pain or loss is severe enough to justify the damages you seek. How, then, can you prove non-economic damages?
What's often said is true: Preparation for trial starts at the initial client meeting. When developing your non-economic damages case, take the time to learn how the injury or loss has affected your client's life. Invite the client to your office, or meet in his or her home or other comfortable surroundings. Explore how the injury has changed the client's relationships with family members, the way the client does his or her job, and the client's ability to pursue hobbies and fulfill dreams for the future.
For many clients, this is a difficult conversation. Let the client know you need help to understand how the injury has changed his or her life. Explain that the more he or she talks about this with you, the more natural it will become. You do not want your client to sound whiny, but you do want him or her to feel comfortable talking to others about personal matters.
As you work with your client, also consider whether someone else can better tell his or her story. For example, you may have a client who tends to minimize his or her damages. In such a case, you can explain the client's stoic demeanor through other witnesses—family members, friends, coworkers, teachers, health care workers—and let them describe the client's damages. This testimony gives jurors an understanding of the plaintiff's character.
In wrongful death cases, look for nonparty witnesses who can tell the jury what type of person the decedent was and how he or she was dedicated to family members. These witnesses can help the jury understand that the death created a void in your clients' lives that can never be filled. Because these witnesses have no personal stake in the litigation, jurors may find their testimony more credible than your clients'.
To increase the credibility of a claim for non-economic damages, you must make every attempt to substantiate the client's losses with objective evidence. Doing so often requires creative thinking. The following are a few approaches I have used.
By the book
In a case involving the wrongful death of a 26-year-old mother of two, I met strong resistance from an insurance adjuster whose assessment of adequate compensation was far less than mine. The adjuster reasoned that the value of the case was significantly reduced because the woman was not employed outside the home at the time of her death. I disagreed strongly.
To convince the adjuster of the severity of the loss this family suffered, I referred to two excellent resources that dealt with the impact on children of losing a mother at an early age. I took excerpts from the books and cited them in a letter to the adjuster. Here is part of what I wrote:
Joan was 26 years old at the time of her death. She is survived by her husband, Peter, 28, and two children: Joe, 5, and Mary, 2. They have a combined life expectancy of 191 years. There is no doubt that their lives have been irrevocably and profoundly changed as a result of her death. A jury will clearly recognize the enormity of the loss that results from the absence of a nurturing mother during a child's life. Jurors will recognize that no one will ever love a child as a mother does. There is no love as strong or unconditional as a mother's love for a child. This loss of relationship is a lifelong loss.
Hope Edelman has discussed this subject thoroughly in her New York Times bestseller, Motherless Daughters, The Legacy of Loss:
"A daughter who loses a mother does pass through stages of denial, anger, confusion, and reorientation, but these responses repeat and circle back on themselves as each new developmental task reawakens her need for the parent. . . . [S]he may be back in the mourner's role again when she graduates from high school, plans her wedding, gives birth to her first child, is diagnosed with a serious illness, or reaches the age at which her mother died. At each milestone, a daughter comes up against new challenges she's frightened to face without a mother's support, but when she reaches out for her, the mother isn't there. The daughter's feelings of loss and abandonment return and the cycle begins again."
This subject has also been dealt with by psychologist Maxine Harris in her book The Loss That Is Forever: The Lifelong Impact of the Early Death of a Mother or Father. Dr. Harris writes that when a child loses a father or mother, the child grows up feeling different and alone. She states that the loss of a parent is a catastrophe that "disrupts a child's world in every imaginable way":
"For a child, the death of a parent shatters assumptions about the basic order of how life should proceed. A child believes in a safe and secure world, a world in which the events are predictable and orderly, a world which can be understood. When a death is sudden and unexpected, the world and everything in it seems less safe and more precarious. If a loved mother or father can disappear overnight, then who knows what other disasters lie ahead."
Dr. Harris and Ms. Edelman have recounted many, many stories of children who have lost their parents and the effect this loss has had on them as they journey through life. The stories they share are illustrative of what lies ahead for Joe and Mary.
Ultimately, the adjuster was persuaded to recognize the full value of the loss this family had suffered, and the case was resolved.
I practice primarily in Minnesota, and juries there, like those in many parts of the country, historically have been very conservative in awarding damages in child death cases. In part, this is because Minnesota does not allow survivors to recover for grief and emotional distress. In an infant death case, I knew I had to educate the jury about the loss parents suffer when a child dies. I arranged for a parent-infant specialist to speak about this at trial.
Minnesota law places significant restrictions on evidence in wrongful death cases, so I had to carefully define exactly what this witness would testify about. I met predictable opposition from defense counsel, who suggested that I was calling the witness to elicit testimony on the family's grief and emotional distress, which is not admissible.
I countered that the testimony would describe the value of the relationship between child and parent, which my clients had been deprived of as a result of their child's wrongful death. On this reasoning, the judge allowed the witness to testify.
The parent-infant specialist was able to explain to the jury that parents form a relationship with their child and develop parenting skills even before the child is born. She testified that the death of a child is a lifelong loss that affects the entire family.
This witness was especially credible because she had worked with my clients after their child's death in a support group for families who had experienced the loss of a child. She knew about their loss and about similar losses suffered by many other parents. While this testimony arguably covered elements of grief and emotional distress, it went much further. Creative lawyering ensured that the jury heard this valuable evidence.
A grandfather's story
In a case involving a neurologically impaired infant, I used an extensive day-in-the-life video to show the jury my client's daily routine. The video demonstrated the family's hands-on role in the infant's treatment and emotional commitment to his care. It also clearly showed the child's pain and suffering.
At trial, the infant's grandfather, who was active in his care, narrated what the tape showed. While the jury watched the tape, he described how he took the child through an extensive routine of daily therapeutic exercises. Because it clearly showed jurors how much the family wished to help the child, the tape made a significant impact on the value of the case.
Always look for new and creative ways to illustrate your client's damages. One caveat: Make every effort to test your new approach—using focus groups or mock trials if possible—before presenting it to a jury.
As you develop your damages case, you must fully explore the effects of your client's injury so you can show the jury how the defendant's negligence changed his or her life forever. The loss of an arm is terrible for anyone, but it is particularly devastating for a violin player. Look for the "violin" in your client's case. By fully exploring the effects of your client's injuries, you can tell a story that will support the damages and lead to fair compensation for non-economic losses.
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