TBJ OCTOBER 2022 OPINION
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?
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.
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.
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.
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
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.