TBJ OCTOBER 2022 OPINION
Fully Acknowledging
Human Damages
It is what’s below the surface that matters.
Written by Randy Sorrels
Since the inception of time, the notion of granting relief to an injured
person has existed. Nearly every civilization has developed some method
for granting relief to someone injured through the wrongful activity of
another. For example, some cultures required the at-fault individual to
compensate the injured party with an ox or a sheep.1 Today,
in Texas, the injured person is made “whole” through payment of money
damages. And while at one time, the jury had no role in determining the
amount of damages, jurors are now often the sole decision-makers on
damages, and there is great deference given to the jury’s award.
An injured plaintiff may recover two types of actual damages: economic
and non-economic damages. Historically, juries have had less difficulty
understanding and awarding economic damages—those financial losses and
expenses that can be easily documented in a spreadsheet. On the other
hand, non-economic damages—those subjective, non-monetary losses such as
physical pain, mental anguish, physical impairment, and physical
disfigurement—have sometimes been more difficult for jurors to grasp.
However, most injured victims agree that their non-economic injuries
have a far more significant and enduring impact on their lives. While
relief for economic damages may make third parties whole (i.e., doctors
and hospitals), it represents only the tip of the iceberg for
victims. What lies below the surface of the water is what has most
significantly changed their lives.
A Paradigm Shift
In years past, while lawyers understood the impact non-economic
damages had on the lives of their clients, jurors were often reluctant
to acknowledge these damages. Did jurors lack empathy for a fellow
human’s suffering? Did jurors believe that bad stuff just happens? Or,
had lawyers failed to evolve effective methods of accurately portraying
these injuries?
Regardless, one thing seems certain: Just as the world evolved from the
old “eye-for-an-eye” justice model, COVID-19 era jurors can now
appreciate the devastating consequences of non-economic damages and are
more willing to account for them in their verdicts. Jurors have
experienced first-hand or seen the effect it has on a person when their
freedom, dignity, and happiness is suddenly stripped from them. And
plaintiffs’ lawyers, who can now more easily identify and internally
believe in these damages, have become more effective in presenting these
damages to juries.
An Eye-for-an-Eye Damage Model
The Old Testament notes: “If a man causes disfigurement of his
neighbor, as he has done, so shall it be done to him—fracture for
fracture, eye for eye, tooth for tooth; as he has caused disfigurement
of a man, so shall it be done to him.” In biblical times, it was often
believed that the responsible party could only fully appreciate the
injury he or she caused if the same injury should be inflicted on the
“defendant.”
This country does not permit this method to acknowledge the full extent
of harm caused. But plaintiffs’ lawyers should draw from this old damage
model when analyzing the extent of harm the injury has actually caused
their clients. After all, who would trade an eye-for-an-eye when they
could pay money damages instead?
Start With the Client
Everyone needs to understand how an injury affects the whole person.
This begins with the injured client. Ask each client to write the most
minute detail of how the injury has affected his or her life. Give them
time to record every effect—physical and emotional. And the lawyer
should do the same thing as if the lawyer suffered the same injury. If
the case goes into litigation, sit with the client to finalize the
client’s list before the deposition. Have the list in front of the
client, ready to share with the defense counsel. And supplement the
client’s discovery responses.
The Lawyer’s Role
For the lawyer, compare the lawyer’s list with the client’s. If the
lawyer has failed to fully appreciate each and every way the injury has
affected the client, it is time to readjust your beliefs in this case.
The lawyer must determine the most effective strategies to persuasively
communicate to the jury what is below the surface. Try to apply the
golden rule to yourself. What would I take for a lifetime of back pain
that changes how I sit, stand, walk, work, interact with my family
(parents, spouse, kids, grandkids, siblings), and just live? Most
lawyers would agree that it would take a lot of money paid to them to
have a serious injury inflicted on them. So why should it be any
different for the actual injured plaintiff?
Voir Dire
In every injury case, the plaintiff’s lawyer must voir dire
on non-economic damages. Because while many jurors are more accepting of
non-economic damages, not all are. Identifying potential jurors
predisposed against non-economic damages and securing their excuse from
jury duty is necessary to obtain a just verdict. Different lawyers
employ different techniques to identify and excuse those jurors. Whether
it is David Ball’s technique, Mark Lanier’s approach, Keith Mitnik’s
method, Brian Panish’s strategy, Nick Rowley’s teachings, or Sari de la
Motte’s theories, find what works best and use it. A bonus: while
eliminating unfavorable panelists, the remaining panelists become more
educated about what the case is really about. And remember—the case is
about what you make the case about.
Opening Statement
The opening statement sets the stage for what the jurors will
ultimately vote on. Too many lawyers focus on liability for too long
during their opening. That is natural—we need to win liability if we are
going to secure a damage award. But there should be a significant focus
on damages as well. This is why we have our justice system—full
accountability. Full accountability does not mean you should just say,
“Sorry.” It also means making up for the torment caused.
Damages Witnesses
Plaintiffs usually call doctors to testify on damages. “Expert”
witnesses can help enlighten jurors on what happened internally and
externally to the injured client. Some jurors may be skeptical of these
“expert” witnesses, so providing other witnesses may be more compelling.
Physical therapists, occupational therapists, family members, friends,
neighbors, coworkers, and casual acquaintances can more persuasively
tell the “before and after” story and the real gist of the injuries.
This is especially true when the injuries are not readily apparent or
lie beneath the surface. Consider all options when selecting
witnesses.
Some jurors want scientific support for their vote. For example, where a
collision causes minimal damages to the car and no visible injuries to
the client, some jurors need an explanation of the forces involved in
the collision and how they affected the plaintiff. Don’t miss a chance
to mechanically connect the injuries to the defendant’s negligence.
Closing Argument and Rebuttal
The list of damages arguments is extensive. The techniques are
many—per diem analysis (or reverse per diem argument), the “experiment”
model, “two men in a suit,” “paying an invoice,” comparing the losses to
other things our society values, and so on. Which technique to use in
closing or rebuttal is a case-by-case decision for the advocate. But
make no mistake, jurors can better relate to the damage model through an
analogy rather than a lawyer telling them “to use your common sense and
life experiences to come up with a number.”
When there is supporting evidence, the future damages cannot be
overemphasized. Future complications—which may not be likely, but may
cause concern or fear because they are unknown, should be explored. What
nerves, muscles, tendons, and cells got damaged? Is there worry about
higher blood pressure, increased immobility, poor posture, blood clot
formation, weight gain, diabetes, depression, anxiety, and
isolation?
These concerns are not only real but also forever present. They are
always in the back of a person’s mind. These injuries—below the
surface—are often the most damaging. Encourage jurors not to turn a
blind eye to justice and exercise their vote to ensure full
accountability. Full accountability means full justice. And full justice
means full recognition and acknowledgment of the injuries suffered by
the plaintiff.
Conclusion
When we “close” our clients’ files, the next chapter of their lives
doesn’t necessarily improve and move forward as if nothing ever
happened. In fact, the worst of their injuries may still be ahead. What
can’t be seen—what is below the surface of the water—often justifies a
larger award than what has historically been given. Conveying the full
extent of these injuries is critical for our justice system to work how
it is designed. The endeavor to have jurors fully appreciate the extent
of injuries suffered by an injured plaintiff is a righteous one. May all
who represent injured victims be moved to undertake this
endeavor.TBJ
RANDY SORRELS
is a lawyer at Sorrels Law. He is a former president of the State Bar of
Texas and is certified in personal injury trial and civil trial law by
the Texas Board of Legal Specialization. He has been named the 2022
TEX-ABOTA Trial Lawyer of the Year.
