My last post discussed the effective use of experts at trial. This post continues in the same vein, but with a focus on damage experts.
Effective Use of Damages Experts
Remember the goal set forth by David Ball – spend half your time on harm and half on money. Among other things, this means you need more witnesses than you may think to speak to harm and damages. DAVID BALL, DAVID BALL ON DAMAGES: A PLAINTIFF’S ATTORNEY’S GUIDE FOR PERSONAL INJURY AND WRONGFUL DEATH CASES xix (Kenneth S. Broun, et al. eds., National Institute for Trial Advocacy 2005), at 89. Look for such people early on in planning for trial. Obviously, some of this testimony will come from family, friends and the like. However, it is important to determine what experts you will need to establish your damages. Remember that not all experts are retained. You may get the evidence you need from non-retained experts such as your client’s treating surgeon, the Medical Examiner or the investigating Trooper who may be certified in accident reconstruction.
The next question is how many damages witnesses should you have? The number of harms witnesses should equal the number of liability witnesses. Three or four is a minimum for a small case. In larger cases, ten or fifteen witnesses is better. Again, some will be lay witnesses and the others will be your experts. However, the witnesses’ testimony should not be repetitive. Different people see different things so you want to make sure that the witnesses you select convey their individual views of the harm caused. Think carefully about how you schedule these witnesses. It may be a good idea to sprinkle some lay witnesses between damages experts, but it must come at the appropriate time in the case. You want to be sure the jury has a pretty good idea of what gave rise to the injuries before you put on your damages experts.
What Types of Damages Experts Are Necessary?
There are basically two different kinds of damages experts. The first kind consists of experts like physicians and investigating troopers who can describe the injuries, cause of death, and/or what they witnessed at the scene of the collision. The second kind consists of experts that testify about the economic impact of the injuries or death at issue.
With respect to the first category, it is once again important to select the right exhibits in connection with these experts’ testimony. Rather than have the Medical Examiner simply testify that the cause of death was blunt force trauma from the collision, make sure you get their file as it contains a trove of information you may effectively use with their testimony. For example, an ME’s file generally contains a diagram of the human body with markings depicting the various injuries. Blow this up for the jury. Have the ME take the jury through those injuries one by one. Make sure to ask him what terms like “de-gloved” mean. It may seem obvious, but ask the physician if a particular injury is a painful one. When the Trooper is on the stand, be sure to show the jury photos of the accident scene. Use your judgment with regard to the number and type of graphic photos you show to the jury, and make sure you prepare the family for what they are about to see.
With respect to the second category of damages experts, it is often necessary to retain the services of a life care planner, vocational rehabilitation expert, economist and, perhaps, a physiatrist. These experts speak to the actual economic impact of the victim’s injuries or death. The challenge in presenting these experts is that the subject matter can get dry and the jury can lose focus. It’s important to keep these examinations as concise and crisp as possible. This is where an expert’s personality goes a long way.
Life Care Planner and Vocational Rehabilitation Expert
In catastrophic cases resulting in permanent injury, it is necessary to retain the services of a life care planner. If the client is well enough that he or she might return to some form of work, you may also want to retain a vocational rehabilitation expert. Many experts we have worked with in this area are certified in both fields, thus killing two birds with one stone.
Reports issued by these experts can be lengthy and difficult to understand for the average juror, especially life care plans. Life care plans usually consist of a narrative portion describing the plaintiff’s background, description of injuries, medical treatment, and a summary of difficulties with activities of daily living. This is followed by a table which sets forth a summary of future needs (in terms of medications, medical treatment, rehabilitation, adaptive devices, etc.) and the associated unit costs. After a concise qualification and tender, ask your expert to explain the purpose of life care planning. Then, introduce their life care plan. Publish it to the jury and make a copy for each one. Ask your life care planner to briefly describe what comprises the narrative portion. Then, turn your attention to the tables and costs. Have the life care planner briefly explain what each column represents (description of care needed, frequency, unit cost, name of physician which supported the treatment, etc.). Then, you will be in a position where you can expeditiously run through a description of what each item is, why it’s needed and the associated cost.
A physiatrist often will not be needed, buy you may want to consider one if your life care planner runs into difficulty getting support for the plan through treating physicians.
Most of you who you have been handling catastrophic injury cases long enough have likely relied on Dr. Finley Lee at some point in your practice. And with good reason. Dr. Lee had a gift for taking the mundane (with apologies to economists everywhere) and keeping the jury entertained. With his retirement, we are always on the lookout for another good economic expert.
Dr. Lee’s typical direct exam provides a blueprint for the effective use of an economic expert. After qualification and a brief explanation of what the expert did in the case, introduce the report. Again, publish it to the jury, with each juror getting a copy. With Dr. Lee, we would simply ask him to explain what the figures on each page of his report represented. And he did so in a clear and concise way. The only real technical aspect of his exams pertained to a short, but necessary explanation of the discount rate. But by keeping the report, as well as the testimony short, we were able to show the jury how a particular case comes to be worth over seven (or eight) figures. Our direct exams of Dr. Lee rarely required more than a dozen or so questions. And they often lasted no more than 30 minutes.
Whomever you decide to retain as your economist going forward, strive for the same clear, concise presentation. And if you locate one who also happens to display some charisma in front of the jury, put that expert on speed dial for future cases.
Effectively Summarizing Your Experts’ Testimony in Closing
Now you’ve effectively presented your experts during trial. However, because it’s a catastrophic injury case, the jury has been listening to evidence for two weeks now. Defense counsel presented their own cadre of experts who are more fresh in the minds of the jurors. In closing, it is important that you remind the jury who your experts were and what they had to say.
One technique we have used in the past is to photograph each one of our experts. Then, we put their image on the upper corner of a PowerPoint slide. If we used three slides to summarize their testimony in bullet point fashion, we put their image on all 3 slides. It puts a face to the name and reminds the jury of that expert’s testimony. Though we have never faced an objection over the use of such an image, be aware that such an objection could arguably be sustained unless the photo was introduced into evidence. This is yet another reason why you might consider introducing photos of your aerospace engineer with astronauts, or the fetus grasping the finger of the maternal-fetal medicine expert as described above.
As in every other stage of trial, it is important to emphasize damages in your closing. In cases where liability is a complex and hard-fought issue, it is easy to get caught up spending most of your time addressing liability. At this presenter’s firm, trials are usually handled by two attorneys. One technique we have used which has met with success is to split up the closing. One attorney will talk about liability. Defense counsel will then give his closing. Then, our other attorney will conclude by talking about the damages.
In order to obtain large verdicts, you need to arm jurors with the tools they need to give you what you ask for. You are probably not going to persuade jurors who are already against your position. So you are really speaking to those jurors that are already on your side. Essentially, you will be asking these jurors to persuade the hostile jurors for you in the deliberation room.
For example, to effectively use the life care plan put forth by your expert, you need to do everything you can to protect that figure because any damages awarded for intangibles are often based, in part, on the tangible damages total. Ball, supra, at 107. To do so, prepare a line-item chart of every important life-care item or group of items. Show the cost of each and create a blow-up or PowerPoint slide with this information so the jurors can view along with you. Suppose the list begins as follows:
Speech therapy, 6 years $13,500
Leg braces, lifetime $24,567
Pain medication, lifetime $57,400
Tell the jurors that the TOTAL figure is the amount you need to take care of John Smith. Let them know that you can’t tell them what amount to give, that it is up to them. Id. Tell them that if there is something on the life-care plan they do not think the plaintiff should have, to cross it off the list and reduce the plan by the corresponding amount. Id. If you have removed any unnecessary or “luxury” items from the plan, and if you have made sure every price is legitimate and sounds reasonable, then this method will help you from losing life-care plan money. Id. It makes it very difficult for the hostile juror to simply say, “$3 ½ million dollars sounds like a lot. Let’s give him half of that,” because it will be hard for that juror to explain what he would remove from the plan and why. Id.
You’ll also want to create a calculation of damages chart for intangible losses. For example, separate the losses as follows:
Past loss of use of leg $ ___________
Future loss of use of leg $ ___________
Past physical pain $ ___________
Future physical pain $ ___________
Past emotional suffering $ ___________
Future emotional suffering $ ___________
Past loss of life’s pleasures $ ___________
Future loss of life’s pleasure $ ___________
Ball, supra, at 108. Attorneys with this presenter’s firm have created such charts with blanks left for counsel to suggest and write in a figure. Take time to explain the dramatic impact each element of human loss has had on your client. Repeat several times how the pain is the worst harm in the case. Ball, supra, at 106. This is where you can weave in the testimony from your experts and remind the jurors of the exhibits used with those experts. Using such a chart allows the friendly jurors to explain to hostile jurors why they want to put such a large number on the pain element – because it is the worst harm in the case. Ultimately, you want to empower the jury when they go to deliberate. Consequently, be sure to tell them you are only suggesting a figure for them to award your client and that they are free to select an entirely different (and even higher) figure than what you’ve quoted.
It is a statistical fact that more than ninety-five percent of all cases eventually settle. However, to maximize the result for your client, it is imperative that you maximize the use of your experts. Doing so will allow you to negotiate from a position of strength. And if your case does not settle, you will be in position to try your case with the confidence and effectiveness necessary to obtain a substantial verdict on behalf of your client.