Defending the Damages-Only Case

v. witness preparation and skillful cross-examination. the emotions of those assisting defense plaintiff's counsel deposes him or her, giving defense counsel a chance to prepare the person by suggesting a specific number, defense counsel can create an anchor to which the jury is focuses on a tort claim resulting in injury as opposed to a commercial case, although the fundamentals are he or she will be in conveying regret and withstanding cross-examination. to testify and gauge his or her performance. relevance of trial testimony may again be an 142 fdcc quarterly/winter 2008 overcoming a relevance objection can be a challenge. if the plaintiff's counsel has succeeded dealing with the components of noneconomic damages is the trickiest part of the strategy plaintiff will suffer because of the injury.4 for example, the opinion of the plaintiff's economist as to lost future earnings may apply the potential for prejudice accompanying an admission of fault, counsel should try to con- information that will be used in establishing a trial strategy. most jurisdictions encourage balick, 146 a. 2d 394 (del. 1958); ferry v. checker taxi co., 520 n.e.2d 733 (ill. app. ct. 1987); ilosky as much specific information as possible about why the plaintiff thinks the evidence will iv. (cal. 1966); paducah area public library v. terry, 655 s.w. 2d 19 (ky. ct. app. 1983); cafferty v. mon- on hard data and expert testimony. defense counsel should then explain in plain terms how argument whose purpose is to arithmetically calculate an inflated number. thinking through many techniques for achieving this goal, but the jurors who end up in the box must believe also not discussed. it is hard to envision admitting liability in a punitive damages case. finally, the article trial academy. in cases in which liability is contested, the company witness is usually an appealing every aspect of the trial must be designed to support defense counsel's damages strategy, some states permit plaintiff attorneys to make per diem arguments. see beagle v. vasold, 417 p.2d 673 likely have heard only one damages number that, hopefully, they will keep in mind while fore and after comparison is not helpful. serious trauma cases involving lesser disabilities, the author wishes to thank federation member frank ramos with the research for the article. frank, future disability accommodations, lost income to date and lost future earning capacity are introduction again on the reasonable basis for noneconomic damages to which the jury will have been of the defendant, whether corporate or individual. this was, after all, an accident. there are 148 of the injuries and disability and the need for future care. other expert's will discuss medi- counsel will likely remind the jury how defense counsel expressed remorse on behalf of the atlantic c. l. r. co. v kines, 160 so. 2d 869 (ala. 1963); johnson v. brown, 345 p. 2d 754 (nev. 1959); tort and professional malpractice claims, as well as complex plaintiff's economist on the treasury bill rate by using an annuitant to prove that an annuity culations will depend on varying assumptions. past and future medical expenses, past and however, should prompt thorough inquiry at depositions similar to questions the plaintiff's worsening his or her life by paying a reasonable amount to improve it. plaintiff's injuries, defense counsel must, in advance of trial, consider carefully whether the expert, who has not examined the plaintiff, testifies that she is totally and permanently well in advance of the trial and admission of liability, defense counsel will have ex- injury and disability have not affected the plaintiff as much as his or her counsel claims. 1 defendant in voir dire yet the defendant or a representative of the company never actually defendant's evaluation of economic and noneconomic damages, dividing them into their the amount required when using the t-bill as the discount rate.2 a defense verdict could arguably be based. having carefully weighed all the evidence ad- in most cases involving serious injury the economic loss is mathematically determinate, he or she believes noneconomic damages should be computed, all in conformity with the deciding on a noneconomic amount to request. the defense practitioner should capitalize a "win;" 2) establishing a trial strategy to achieve that win; and 3) successfully executing 1. the company witness it. this is one of the many judgment calls defense counsel must make in these kinds of cases. counsel should consider not making an issue of regret during voir dire, but this is a judgment deciding upon that range using realistic parameters, then formulate and execute a strategy. the company's culture has been sustained. finally, counsel should focus on identifying hostile jurors whose answers did not justify ence and guide defense counsel's opening statement and examination of witnesses and round duty bound to not let sympathy influence the amount. at the end of opening the jury will if not, it must be adjusted. any verdict within or below the final range is a win. think that trebling the plaintiff's annual income constitutes appropriate compensation for his establishes a likely verdict range. flawed economic principles or may depend on a vocational rehabilitationist's calculations be able to shift some sympathy away from the plaintiff and to the defendant. typically, the values and focus on the weaknesses in the plaintiff's inflated valuation. deposition testimony about what the plaintiff cannot now do because of the accident may defending the damage-only case tion, defense counsel should exert every effort to persuade the plaintiff's counsel to mediate verdict analyses and sound judgment in evaluating noneconomic awards in the jurisdiction pitch on liability, negotiations begin. least of which is accepting that the case cannot be "won" in the traditional sense. the defense then an additional $50,000 per year would double the income and the lifestyle, and that can be chosen for his or her jury appeal. defense counsel must carefully evaluate how effective vince the court to probe much deeper to expose bias and eliminate those jurors for cause. jurors instinctively react negatively to defendants, especially corporate defendants, who value of lost future earnings and future medical expenses depends on the economists' view of the reasonable discount rate. defense counsel may be able to overcome the reliance of the and how they are calculated from the evidence to be presented. the economics will be based defending the damage-only case a partner at the miami firm of clarke silverglate & campbell, is president-elect of the florida defense that strategy. 2 economic damages are calculable, so the difference between plaintiff and defense cal- is more appropriate is clearly not the way to counter this type of argument. instead, defense dant to settle for a large amount. in pursuit of that goal, plaintiffs' counsel usually present 147 a cautionary word about surveillance. experience shows that juries have an inherent aversion to inva- their best case in mediation, often offering demonstrative exhibits, video deposition clips, first time in closing. most jurisdictions have a standard instruction to the effect that jurors regret for the accident (if there has been no evidence of it � judgment call) and that they counsel will hear again the plaintiff's best argument about why the demand is reasonable many jurisdictions allow the plaintiff's counsel to make "per diem" arguments consist- company witness has any relevant testimony to offer and, if in doubt, bring the issue before the second goal is to humanize the corporate defendant and convey remorse on behalf plaintiff's experts and to establish the validity of those for the defense. the challenge of arguing noneconomic damages to the jury in advance of trial should influ- therefore conduct voir dire with two goals in mind. counsel should have no difficulty countering that evidence. medical examination discloses minimal permanent disability and the plaintiff's medical 143 feel some hostility toward a defendant who admits fault (but not nearly as much toward a lawyers association. call. the author of this article is mercer ("bud") k. clarke, the damages-only case presents unique challenges to the defense practitioner, not the elevate plaintiff's lifestyle. if the plaintiff's annual income before the accident was $50,000, draw from the facts shown by the evidence. referencing this instruction in opening when ages can appeal to common sense and deflect away from the plaintiff's per diem or similar the representative of the defendant or the carrier, work their magic and convince the defen- trust the jury to be fair to both parties in assessing damages. 1959). yet other states allow the per diem argument if the trial judge provides a cautionary instruction. see once the verdict range is established, settlement negotiations will provide critical counsel should perform a critical analysis of the reasons for the difference between the two and may be influenced by the types of arguments that are allowed in a given jurisdictions. on this failure and tell the jury up front exactly what the plaintiff's reasonable damages are discrete parts. counsel can then re-evaluate the credible evidence on both sides, evaluate time mr. x must look in the mirror to shave and observe his horribly disfigured face ( x 365 nesses about how the injury has affected the plaintiff and what he or she can and cannot do through their testimony. of conveying sincere regret for whatever mistake caused the injury. if so, the witness may injury case after announcing to the court and counsel that the defendant admits liability, including causa- pended a great deal of effort in trying unsuccessfully to devise a winning strategy on which defending the damages-only case be achieved by awarding him $1,000,000 invested at his economist's interest rate of 5%. credible rate, defense counsel may suggest an award, the income from which will significantly the defendant typically will be an individual, the employer of the individual or both. convince a jury to award damages of that magnitude. in cases in which mediation cannot between post-accident life as described by the plaintiff and spouse and that depicted on decision has been made to admit liability. if mediation is not required in the trial jurisdic- in a damages-only case, defense counsel must be particularly diligent during discovery in but jury selection and opening are the most critical. admit their negligence caused a serious injury. experience has shown that many people who verdict and is outside the scope of this article. also, the importance of jury selection, opening and clos- article, apply in a damages-only case. the jury already knows that the defendant admits how to deal with the wrongdoer is another judgment call. much can be learned if the a. jury selection i. that will support the defense's strategic argument on noneconomic damages. and defense voluntarily. normally, plaintiffs'counsel view mediation as a golden opportunity to confront tion. a case in which negligence but not causation is admitted is significantly different from one in which who admits fault will be taken to heart much more so than when presented by counsel. then defense counsel present the humanitarian side of the company in a damages-only case, but and the jury verdict will likely exceed it. defense counsel should use the mediator to obtain being how bad the defeat will be. moreover, the client, who has acquiesced in the decision surveillance film, the plaintiff's credibility with the jury will suffer.3 ingly about the humanitarian aspects of the company. it is equally if not more important that (emphasis on pharmaceutical and medical device), toxic out the pretrial strategy. if the plaintiff was a star athlete and now is a quadriplegic, painstaking inquiry into the be- 146 if not require mediation before trial, and it is an invaluable tool for the defense when the ferences between deposition and trial testimony can be useful in arguing to the jury that the setting the goal braddock v. seabord air line r. co., 80 so. 2d 662 (fla. 1955); johnson v. brown, 345 p. 2d 754 (nev. compared to the situation before the accident--all tempered with common sense. obviously, the plaintiff and the defense evaluation of these components usually turns upon the opinions fdcc quarterly/winter 2008 examination. whatever strategy is to be used must be planned well before trial. 3 the defense's calculation comports with logic and reason. defense counsel must elaborate 4 over objection in introducing evidence of callous conduct by the company, then defense disability. proof that the assumptions are flawed discredits the economist's opinion. present to decide whether to permit the argument. see vanlandingham v. gartman, 367 s.w.2d 111 (ark. 1963); a. economic damages campbell, p.a. he specializes in defending product liability the jury the verdict research, and decide whether the original verdict range remains viable. days per year x 40 year life expectancy = $4,380,000)." arguing to the jury that $50 a day moreover, the principal would be preserved for the plaintiff's family. these numbers can damages (pain, suffering, disability, disfigurement, loss of the capacity to enjoy life, etc.). disabled, the strategy will be to discredit that expert and vindicate the independent medical that are based on erroneous assumptions about the nature or permanence of the plaintiff's ii. likewise, if the plaintiff's counsel's examination includes testimony about the plain- counsel may consider shifting the paradigm by focusing on compensating the plaintiff for fdcc quarterly/winter 2008 tiff's background, defense counsel should be allowed to present evidence of the corporate essentially he same. a verdict not exceeding a certain range. defense counsel must do his or her homework in opening should conclude with a statement to the effect that, for all these reasons, we 145 involving a variety of factual and legal issues. mr. clarke defendant who presents a transparently contrived liability defense). defense counsel should them than they are at trial, after their counsel has paid more attention to preparing. the dif- extra money could be used to advance the interests of the plaintiff and spouse as established assuming that a wrongdoer can be specifically identified, defense counsel should spend defending the damage-only case the fundamentals of a sound opening statement, which are beyond the scope of this d. closing be manipulated to fit the particular case. defense counsel should give examples of how the no different than in a case in which liability is also contested. plaintiff's counsel will offer and what defense counsel concludes is the high side of the likely verdict range. defense the usual components of economic loss in a personal injury case. the difference between verdict. for example, "i am asking you for $300 for each issue. if the plaintiff's background comes into evidence, defense counsel should be allowed where the case will be tried. combining the ranges for economic and noneconomic damages claims arising out of commercial and employment disputes 2. the wrongdoer has changed the plaintiff's life. there will be medical evidence about the nature and extent "anchored" since opening. finally, defense counsel must convey the defendants' sincere president and a founding principal of clarke silverglate & person who has material knowledge about whatever the issue is and can also speak convinc- perience a defense lawyer will face in the trial arena.1 conclusion sion of privacy. unless the surveillance is compelling, the defense practitioner should consider not using excusal for cause and use peremptory challenges judiciously. discovery will reveal the plaintiff's position on the nature and extent of the injury and testimony from the plaintiff, the spouse and before-and-after witnesses about how the injury to admit liability, is probably sullen at best. turning this negative situation into a positive if defense counsel has formulated and executed a strategy, closing should take care of listening to the evidence and carry with them all the way into deliberations. this particular case has such a high jury verdict potential. into testimony evidencing remorse. but, unlike the company witness, the wrongdoer cannot that the defendant sincerely regrets the accident and the consequent injuries. the only ca- was hoping for but a whole lot better than the plaintiff's per diem calculation, made for the there is none of the exhilaration as- said they were sorry. if there are reasons for keeping the defendant off the stand, defense v. michelin tire corp., 307 s.e. 2d 603 (w.va. 1983). other states leave it up to the trial judge's discretion counsel would be expected to ask at trial. the plaintiff's demand most likely will be presented through the mediator, and defense may make deductions and reach conclusions that reason and common sense lead them to this example is by no means exhaustive. numerous approaches to noneconomic dam- weeks v holsclaw, 295 s.e.2d 596 (n.c. 1982). witness would describe how the mistake occurred in terms that humanize his or her actions, plaintiffs often are more reticent at deposition in expressing how the injury has affected cal expenses and loss of earnings. defense counsel will cross-examine and offer counter- the court in advance of putting the witness on the stand. nothing good can come from the counsel trend toward depression instead of excitement. defeat is conceded, the only issue the law is not entirely settled in this area, so make sure that the court will allow this evidence before if it all comes together, a "win" in a damages-only case is almost as rewarding as a defense b. opening requires some creativity, but it can be done by: 1) setting a goal that can be characterized as this article will be restricted to consideration of strategies to be employed in actually trying a personal quality time with the person to discern whether he or she is a believable witness capable day-in-the-life videos, computer animations and the like. after defense counsel makes the not, however, the plaintiff's counsel will describe the horror of the plaintiff's injuries but as negotiations through the mediator or in person continue to impasse, defense coun- defending the damage-only case executing the strategy the flaws in the plaintiff's calculation of economic loss and persuasively demonstrate why counsel and has served as a faculty member at the iadc defense counsel should press hard on juror hostility and try to challenge others for cause. presenting testimony and cross-examining about damages in a damages-only case is counsel must consider how, if at all, to present testimony from the company witness and the first is obtaining as stoic a jury as possible. most judges will give preliminary pressing the plaintiff, his or her spouse, family members and other before-and-after wit- using the rate of interest for safe investments of the plaintiff's economist or some other instructions and ask some questions designed to eliminate sympathy and prejudice. given will not ask for a specific number. they tend to want to see how the evidence goes before also be subject to impeachment by surveillance. if a significant difference can be shown c. the evidence of directors of the international association of defense establishing the strategy has tried more than 100 cases in state and federal courts from a triple-a company will provide the plaintiff's future economic needs at a fraction of the need for future medical care may vary widely among experts. if an independent of experts. the defense strategy will be to exploit the weaknesses in the opinions of the fdcc quarterly/winter 2008 throughout the state of florida. he is a member of the board trial. convey regret and reinforce the notion that well meaning people make mistakes. disfigurement and award $2,000,000 for noneconomic damages, not what defense counsel veat is that failure to present a witness to express this regret may backfire. the plaintiff's although there can be a wide range of disputes depending upon expert opinions. noneconomic would apply reason and common sense to a case in which liability is legitimately contested trying a case whose only issue is the calculation of damages is the most daunting ex- disability, the amount of past and future economic loss and the factors affecting noneconomic b. noneconomic damages ing is discussed below, but a discourse about those topics is also beyond the scope. punitive damages are evidence. cross-examination of the plaintiff and spouse, however, should establish facts defendant's background. but if the plaintiff's counsel has assiduously focused his case on the itself. ideally, it will be virtually the same as opening. it should include an explanation of sociated with the prospect of achieving a defense verdict through eloquent oratory, thorough ing of asking for a relatively small per diem amount to compensate for daily experiences the 144 141 son, 360 n.w.2d 414 (minn. ct. app. 1985). some states do not permit per diem arguments. see henne v. all defenses are preserved, but the causation-only defense case concludes with asking the jury for a defense discussing reasonable compensation for the plaintiff's injuries reminds jurors that they are aggressive questioning from the bench about sympathy and prejudice against a defendant would likely incense the jury, defense counsel's efforts will turn to assessing damages. will be asking you to render a verdict in the amount of _____ at the conclusion of the case. mentality must be retooled to accommodate the notion that a win can be defined in terms of witness identifying herself then leaving the stand after objection to the first question about mentally tethered.anchoring establishes a frame of reference to which the jurors can add or the strategy will be dictated by the difference between the plaintiff's settlement demand be arranged, defense counsel should press the plaintiff's counsel for specifics about why the wrongdoer. damages, however, are not subject to mathematical calculation. counsel must rely on jury iii. subtract depending upon how they view the evidence. in the previous example the jury might fault and will be interested to hear what the lawyers want them to do. more likely than duced in discovery and persuaded the reluctant client that resisting liability is futile and pre-planned strategy. mercer k. clarke sel should have a crystal clear picture of the differences between the plaintiff's and the to present background including employment history of the wrongdoer that can segue easily