I.          INTRODUCTION.

 Damages are a highly individualized aspect of any personal injury action. This outline will presume a basic knowledge of the mechanics of presenting damage testimony.  The focus of this outline will be some philosophies and techniques that I have found helpful in attempting to recover a plaintiff's "full" measure of damages.

 II.         PHILOSOPHY AND APPROACH TOWARDS DAMAGES.

A.        Some lawyers seem to think that damages are a tag-a-long element of the case that will take care of itself until a week or so before trial.  That philosophy is not conducive to recovering the full damages that your client has sustained.

B.        It is extremely difficult and often times impossible to take a seriously injured plaintiff and make him whole.  With such injuries as brain damage, quadriplegia, and/or death of a loved one, all the gold in Fort Knox will not make the plaintiff whole, but our job as lawyers is to see that such clients are helped to the fullest extent possible by monetary award so that a jury is allowed to make them as whole as possible with the use of a monetary judgment.  If we remind ourselves of the difficulty of our task in making an injured person whole, we will focus more on the development of damages from the beginning to the conclusion of our case.

C.        If every person on the jury had suffered the same type of injury as your client, and had been through what your client has been through, the presentation of damages would be greatly facilitated.  But, if the defense lawyer has enough preemptory challenges, you usually will not have anybody on your jury that has sustained a similar injury, and you must prove to six people who don't know the first thing about your client and who have no common experience with the quality of his suffering, how explicitly your client has been damaged.

D.        Obviously, if you are going to teach the jury the full extent of your client's damages through the presentation of your case, you are going to have to fully understand the extent of your client's damages yourself.  This means more than asking the client how bad it hurt and what he could do before the accident that he can't do now; it means more than asking his physician the percentage of his permanent disability; it means more than compiling the client's medical bills.  The following thoughts are some of the things I continually tell myself to encourage myself to learn what I should about my client's damages:

1.         LISTEN TO YOUR CLIENT!  He is trying to tell you how to win your case.  Many times we subconsciously resent our clients having unusual, unique problems that do not fall into the standard program we have developed over the years for presenting damages.  I think that many times we subconsciously try to mold our client's damages to fit the mode of presentation we have previously used in presenting other client's damages.  The reason for this subconscious motivation is that it takes more time to individualize a case to the client and present his actual damages even if they differ from the norm.  The extra time it takes to really learn about what is bothering your client and to do the extra research necessary to appropriately present it will be amongst the most important time you spend on a case.

2.         Interview your client at least once in his home environment.  You will learn many things about him that he is incapable of verbally expressing to you.

3.         Believe your client!  If you can't convince yourself that your client's complaints are legitimate, you are going to have little success in convincing anybody else of that fact.  If you have difficulty believing that your client's complaints are in keeping with the apparent nature of his injuries, do not be hesitant to refer him to other medical specialties for diagnostic workups, and do not be afraid to refer him for psychiatric consultation for potential diagnosis and treatment of traumatic neurosis or conversion reaction.  Psychiatric problems are just as real and just as injurious to a person as physical problems, and if your client has psychiatric problems as a result of his accident, you should not be ashamed of that fact, but you should focus on teaching the jury that psychiatric illnesses are just as real as physical illnesses, and are even more difficult to cure.

4.         Teach your client about each of the elements of damages that will be compensable under Law so that he will have some understanding of how to categorize his problems, and some understanding of what events are significant so that he will be able to remember them.

5.         Encourage your client to keep a calendar or diary in which he makes short notes of any particular problems he experiences from his injury.  Inform him that it may be a year or two down the road before he has an opportunity to tell six strangers the full extent of his problems and that it will be helpful to him to have a brief reminder of what was happening to him, and when it was happening, to refresh his recollection.

6.         Conference with your client's doctors without waiting for their depositions to be set.

a.         Be ready to explain to the physician the difficulty of your job in trying to explain to six strangers the full extent of your client's problems.  Be ready to explain to the physician the concern you have over potentially leaving something out since your client will only get one day in Court. Tell him that you must rely on his expertise to successfully accomplish your task.

b.         Make it clear to the physician that you want him to teach you all about the ramifications of your client's injuries so that with his help, you will be able to teach the jury.

c.         Remember that you will probably be spending more time with that physician than he has ever spent talking to your client, and that you may be aware of many problems that your client has that have not been communicated to the physician.  Be sure to point these out to your client's physician so that he can inquire about them on your client's next visit to the physician.

7.         If you have a client with poor expressive abilities who does not seem to convey to you the full extent of his problems, seek out a person who has suffered the same injury that has better expressive abilities, and learn the full extent of the problems from him.  Once you understand the problems, you can help your client bring them out despite his poor expressive abilities.

8.         Take the extra effort to demonstrate to your client that you care about him and that you are going to put his interests above your own.  The rapport you gain from this tremendously facilitates your communication with the client and the task of learning what you need to know about him.

9.         Keep a separate folder for each of the compensable elements of damages in your client's case - bodily injury, pain, suffering, disability, disfigurement, mental anguish, loss of the capacity to enjoy life, medical, hospital, and other care costs, and loss of earning ability.  Every time you receive information that is pertinent to one of these elements of damages, make an entry or note in the respective file.  By the time the case is ready for trial, you should have a presentation of your damages all ready well-organized and programmed for presentation.

III.        HELPFUL ADJUNCTS IN DEVELOPING AND PRESENTING DAMAGES.

A.        In cases involving large future specials such as medical expense or loss of earning ability, strongly consider using an economist.  Most economists that are worth their salt will be able to teach the jury that in computing any future loss, one must take into account a yearly inflation rate, and that in reducing any future loss to its present value, one must take into account that any income earned on the Judgment will be reduced by income taxes.  In teaching the jury about inflation and future projected values and reduction to present values, an economist will help to condition the jury so that they are not afraid of large figures.  A severely brain damaged child whose future care costs are a present value of $25,000,000.00 would have projected care costs over a lifetime of some $200,000,000.00.  Twenty-five million dollars does not sound like a frighteningly high figure when a jury knows that it will be used to provide $200,000,000.00 worth of payouts over a seventy year life expectancy.

B.        Consider consulting a psychologist or psychiatrist for assistance in certain areas such as selecting the jury.

I have found it a very helpful adjunct to have a psychologist skilled in gestalt therapy or body language to assist me in selecting juries and to give me added insight as to what information the jurors are making available to me non-verbally.  I have also found consulting psychologists to be helpful in suggesting questions that will be revealing of a juror's bias or partiality in a given case.

C.        Moderate use of videotaped depositions can be very effective.  I have found that the presentation of one or two key expert or medical witnesses by videotape presentation can be very effective.  The contrast in mode of presentation by videotape deposition emphasizes the witness' testimony and cause it to stand out.  This benefit often outweighs the fact that a live witness is generally the best mode of presentation.  But if one uses too many videotaped depositions in a case, that mode of presentation will lose its dramatic effect and will be less effective than live testimony.

D.        Videotaped "Day In The Life" films can be a very effective tool for getting six strangers to understand what life is really like for your injured client.  Videotaped "Day In The Life" films of your client, with or without sound, are very effective in cases where you realize that you yourself did not fully understand your client's damages until you went out and observed him in his own environment. When you visit your client in his own environment and realize that you could not understand what his problems were really like until you saw them, then you should strongly consider a videotaped "Day In The Life" presentation of that film.

If you have an injury that is going to develop through several stages, consider periodic videotapes that will show the developmental stages of the injury.

With visible injuries, it is extremely important to film them as early as possible while they are still graphic. This can be done by still photographs, videotapes or both.

E.        Try to find an uninjured role model of your client that you can put on the stand as a "before and after" witness.  The jury will usually realize that but for the negligent injury, your client would be in the ideal position of this role model witness.  In a child injury case or child death case, one of the uninjured siblings is usually a good role model.  With an adult, a fellow employee or friend can often serve as such a role model.

F.         Get all of your client's medical records.  Read all of them.  Often times, you will find a very effective piece of evidence somewhere in the records, e.g., a nurse's description of a particularly excruciating episode while your client was in the hospital. Often times, such a nurse will make an excellent live witness, and to focus in on few of the relatively minor incidents in the course of your client's injury and to show how excruciating they were is a very effective mode of persuasion.

IV.       DAMAGE CONSIDERATIONS IN DIFFERENT PARTS OF THE TRIAL.

A.        Voir dire.

                        1.         Many jurors are prejudiced against the awarding of a large verdict simply because it is a lot of money.  None of the jurors will admit that on voir dire.  I think that it is important to ask a question along the lines of "If you are selected to sit as a juror in this case, and found from the evidence and the law that it would take a very substantial verdict to do justice in the case, is there anything about your philosophy or background that would cause you any hesitation to award a large verdict simply because it was a lot of money?"  Watch the juror closely as he answers this question.  If he is in the least bit equivocal or hesitant in his manner of answering, his answer is really, "yes".

2.         Jurors who have suffered a similar injury are usually a big plus.

3.         Jurors who have endured substantial suffering or disability are usually a plus.

4.         Jurors who have been the plaintiff in a personal injury case before are usually a big plus.

At least they will have some idea that your client is not going to get all the money that is awarded.

5.         Jurors that like children, have children, or want to have children, are usually a plus.

6.         Accountants, bookkeepers, tellers, etc. are usually a minus insofar as general damages are concerned, but they can be very good jurors in a case involving large special damages.

7.         Wage earners are usually better damage jurors than wage payers.

8.         Salespersons of any sort are usually good damage jurors.

9.         Jurors who are on the government dole for an occupation are usually good damage jurors.

B.        Opening statement.

1.         Just as it is important to explain to your client what the compensable elements of damages are and what they mean on your first meeting, it is important to explain to the jury what the compensable elements of damages are and what they mean on opening statement.  This will better allow them to key in on testimony that they should be considering towards damages.

2.         A helpful technique in getting the jury to remember all of the elements of damages throughout the pendency of the trial is to divide the elements of damages up into six groups, and by gesture assign one juror to each group as you are explaining them on opening statement.

3.         Opening statement is one of only two opportunities you will get to explain your client's damages in context and as a whole.  It is important to do so, but to do more good than harm, you must be intimately familiar with the damage picture when you give the opening statement.

C.        Direct examination.

1.         The use of professional economists, videotaped depositions, "Day In The Life" film, etc., were discussed in an earlier section.

2.         Unless there is a compelling reason to do otherwise, consider keeping your client out of the courtroom except for voir dire, his own direct examination, and the Judge charging the jury at the close of the case.  The impact your injured client has on the jury is much more dramatic if they don't see too much of your client.  It is helpful to have your client there at the beginning of jury selection to meet the jury, make sure that he does not know any of them, or that he does not have any bad vibrations for any of them.  After that, it is usually wise to keep your client out of the courtroom until it is time for him to testify.  His entrance and testimony is then very dramatic. By excluding him from the testimony thereafter, it becomes a very dramatic moment when final arguments are concluded and your client enters the courtroom to look at the jury while the Judge charges them on the Law.  It has been my experience that if a plaintiff is in the courtroom throughout the trial that the familiarity breeds contempt or, at least, less interest.

3.         In discussing a case with our contemporary lawyers or with claims adjustors or defense lawyers, we often skip the details and go to such things as special damages, percentages of disability, and so forth.  It is important to present the jury with the details as to your client's damages in a logical and dramatic fashion.  For this reason, you should always conference with your witnesses ahead of time, if they will allow you to, so that you can keep from stumbling around in front of the jury.  You should take every opportunity to use demonstrative evidence, not just for its own value and merits which are considerable, but for the change of cadence and interruption of monotony that it provides.  Attached at the conclusion of this outline is an outline which provides a good basic skeleton for the direct examination of a treating physician.  Additionally, attached to this outline is an outline distinguishing between the quantum of proof necessary to prove causation of existing damages versus the quantum of proof necessary to prove the existence of future damages.  This is an area which often becomes confused to the detriment of the plaintiff and we should be thoroughly familiar with it and ready to explain it to treating physicians in our conferences if it seems to be presenting a stumbling block.

4.         Pay close attention to the order of proof regarding damages as well as liability.  Just as you want the testimony of each witness to be organized as logically and dramatically as possible, you want your overall proof through the witnesses and exhibits to be organized as logically and dramatically as possible.

a.         Normally, the most logical progression for damage testimony is to start with the chronological damage testimony of your client start to finish.

b.         However, there may be compelling reasons to alter this sequence, e.g., if you know there is a conflict between the testimony of your client and the testimony of the client's treating physician, you may want the client's testimony to follow the testimony of the physician so that it will sound like the client is contradicting the treating physician, instead of vice versa. Another instance is where your client has traumatic neurosis or conversion reaction which a jury may not be sympathetic with until they understand it.  In such an instance, it would certainly be beneficial to put the treating psychiatrist on the stand before your client.

c.         In planning the order of proof, be ready to make adjustments to take advantage of the prime time in the day to day attention span of the jurors.  The prime time spots where you will want to place your best witnesses are the first witness in the morning, the first witness after lunch, and the first witness after the break or breaks.  If you have some witnesses that you are not particularly happy with but you feel have to be presented during your case, it is wise to stick them in a slot just before lunch, or just before the end of the day.

d.         If your client has had a long and arduous course of many years of medical treatment, do not be afraid to take the time necessary to go over all of that treatment as long as you do it in a logical and non-repetitive fashion.  I have talked to many lawyers who feel that it is a sin to have a medical witness on the stand for more than a half an hour or forty-five minutes.  This simply will not do justice to the presentation of your client's damages when your client has been treating with that physician periodically for the past five or six years.  In one such case, it took me four and a half hours to present the testimony of the main treating physician that had treated my client for six years.  I presented this testimony with great trepidation because of its length. The jury was very attentive throughout, and the jury awarded the full amount that I asked for.

            e.         The New Evidence Code may provide for a happy compromise between the deleting important medical testimony and having an oppressively long examination of a physician by providing for expert summarization of voluminous documents.  I believe this Rule opens the door for a lot of creativity insofar as charts and graphs and photographic collages of records are concerned.  See F.S. 90.956.

D.        Cross-examination.

1.         If the defendant has any surveillance witnesses or surveillance films, use your cross-examination to point out that surveillance of any kind is usually obtained by deceit in some form, and if the individuals would deceive your client to obtain the surveillance on him, why should they have any qualms about deceiving the jury.

2.         Unless you have tied down a medical witness by prior testimony or prior writings, it is difficult to directly confront him on his opinions.  It is best to give him hypothetical questions that are consistent with your theory of the case on which his opinions would differ so that you can argue to the jury that with the facts as they have found them to be the defendant's physician would concur with your physician, or would concur with your theory of the case.  If it is not possible to successfully cross-examine defendant's physician in this manner, you should have a physician/witness waiting in the wings as a rebuttal witness.

E.        Final Argument.

1.         Damages are integrated with liability as a part of the whole, and you can usually use your liability arguments to advance your damage position and vice versa.  It is healthy to weave damage references throughout your liability arguments and to weave liability references throughout your damage arguments, e.g., when defendant X failed to pay attention to that stop sign for a few brief moments, he doomed John to suffer pain every day for the next 52 years of his life.

2.         In discussing the compensable elements of damages assign one group of elements to each juror by gesture as you did in opening statement.

3.         Try to emphasize the importance and finality of the jury's decision and why it is so important that they do the right thing.  Some effective arguments along those lines are:

a.         This is the plaintiff's only day in Court. After the tenacious manner in which the defendant has defended this case and contested every element of damage, you must realize that if you fail to award the plaintiff an amount of money that will adequately compensate him for the rest of his life, that he can never come back into Court again and claim more.  This is his only day in Court, and if he were to go up to the defendant ten years from now and say "Look, the jury made a mistake.  They didn't listen to the evidence and follow the Law and they didn't give me my full damages and I've run out of money and I can't pay my medical bills.", do you think for one moment that defendant is going to agree with him and say, "You're right.  Here let us give you some more money.".  No way.  The defendant is going to say, "Tough luck.  You had your day in Court."

b.         For the limited time that the jurors are sitting on the jury in this case, they hold one of the most powerful positions in the United States Government.  They have the unlimited power to right a wrong to the extent that money will help.

c.         If by its verdict the jury could wave a magic wand and undo what happened to the plaintiff, the plaintiff would be the happiest person in the world and would not want a dime and would dance out of the courtroom, but unfortunately that cannot be done, the plaintiff will have to live with his injury for the rest of his life and the jury should attempt to award him an amount of money that will put the plaintiff in as good a position as he would have been had he never been injured to the extent that it is possible to do that with money.

d.         If your plaintiff has a long life expectancy with future damages, emphasize what a long time that is by comparing it to the length of the trial which seemed like a very long time to the jurors, by comparing it to a like amount of time of the past(e.g., 50 years ago the stock market had just crashed, this country was in a depression, there was no such thing as World War II, and if you described a television set to anybody, they would have accused you of being a mad scientist.  Fifty years from now, John will still be trying to make it through the pain of existing another day, which will be increasingly difficult as the traumatic arthritis increases with the years.); by comparing how much more quickly time passes when one is experiencing pleasure than when one is experiencing pain.

4.         Paint general damages with a broad brush.  There is legitimate dispute about the best way to present general damages to a jury.  Some lawyers advocate making a dollar per hour per diem argument for every element of general damages.  I have had some successful experience with this type of argument.  However, I have been more successful in painting general damages with a broad brush, then with this approach.  I like to write all of the elements of damages, general and special on a chart or blackboard, and then discuss each of the elements of damages.  I discuss the special damages first and put the amounts of past and future special damages on the board and comment to the jury that that is the easiest part of their task since we have the dollar amounts.  I then discuss the meaning of the general elements of damage and what the evidence has shown about each of those elements. I conclude by stating that the evidence has clearly shown that the total damages, special and general, are blank dollars.  I do not attempt to break down how much of the general damages are attributable to what element.  Some of the advantages of this approach are that you give the opposing lawyer less material to successfully argue with, and that you leave the jury in a position of wanting to figure out how you determined that amount.  This constitutes a broad use of the enthymeme which Aristotle felt was the most effective form of persuasion.

Try to make a demand that is reasonable in light of your theory of the case and all of the evidence presented.  If your demand is not within a reasonable range, the jury will simply disregard it, and will have no incentive to find how you arrived at the figure.

In determining what is a reasonable range of verdict based upon all of your elements of damage, I think it is helpful to develop a five or ten minute capsule of the elements of damage and do a survey of as many non-lawyers and non-claims adjusters as you can.  Although there will be some high and low deviations, you will usually find the majority of lay evaluations fall within a certain range.  In my experience, a demand for a verdict in that range frequently results in a jury bringing back all, or substantially all, of what you ask for.

QUANTUM OF PROOF NECESSARY FOR CAUSAL

CONNECTION VS. THAT NECESSARY FOR FUTURE DAMAGES

            In a personal injury case, it is necessary for the plaintiff to present evidence showing that defendant's conduct was the legal cause of plaintiff's injuries.  See Smith v. Tantlinger, 102 So. 2d 480 (Fla. 2d DCA 1958).

            In order to meet the burden of proving proximate causation in a negligence action, the plaintiff must comply with the more likely than not standard of causation which requires proof that the negligence probably caused the injury.  Gooding v. University Hosp. Bldg., Inc., 445 So. 2d 1015 (Fla 1984); Lopez v. Florida Power and Light Company, 501 So. 2d 1339 (Fla. 3d DCA 1987).

            The quantum of proof necessary to allow a jury to consider future damages is evidence sufficient to raise a reasonable probability that permanent injury or future damage exists.  Westbrook v. Bacskai, 103 So. 2d 241 (Fla. 3d DCA 1958).

            The testimony of a lay witness, without expert medical testimony, can be sufficient to support an award for permanent injuries.  Salvadore v. Munoz, 193 So. 2d 442 (Fla. 3d DCA 1966); Gallub v. DelVecchio, 301 So. 2d 785 (Fla. 3d DCA 1974).

            Without medical testimony or other evidence which would raise a reasonable probability that permanent injury exists, it is error to admit mortality tables into evidence.  Stores v. Hussey, 100 So. 2d 649 (Fla. 1st DCA 1958).

            Loss of a chance to be cured.  Hernandez v. Clinica Pasteur, Inc., 293 So. 2d 747 (Fla. 3d DCA 1974); Atkins v. Humes, 110 So. 2d 663 (Fla. 1959); and Dawson v. Weems, 352 So. 2d 1200 (Fla. 4th DCA 1977).  See Gooding v. University Hosp. Bldg., Inc., 445 So. 2d 1015 (Fla. 1984); Belsel v. Lazenby, 444 So. 2d 953 (Fla. 1984); Fundament v. May, 445 So. 2d 710 (Fla. 4th DCA 1984).

FORMAT FOR EXAMINING PHYSICIAN

ON TREATMENT OF PATIENT

1.         Name.

2.         Profession

3.         Education, training and experience in profession.

4.         If specialized, a description of specialty.

5.         Have you had occasion to see patient professionally?

6.         When and where did you first see him?

7.         On that occasion, did you take a history from the patient?

8.         What did that history reveal?

9.         On that occasion, did you examine the patient?

10.       What did that examination reveal?

11.       On that occasion, did you take x-rays, laboratory tests, or any other diagnostic aids or tests?

12.       If so, what did they reveal?

13.       Based upon your history, examination and testing, did you form an impression as to the patient's condition?

14.       What was that impression?

15.       Did you prescribe any treatment for the patient at that time?

16.       What treatment did you prescribe?

17.       Repeat series of questions 7 through 16 for each patient visit.  After one or two repetitions of the series, the physician will usually get the idea and start giving you that information about each visit without being requested to.

18.       At the conclusion of questioning on all visits, ask the following questions:

            a.         Do you have an opinion based upon reasonable medical probability as to whether the patient's condition or disability will be permanent or continuing in nature?

b.         What is that opinion?

c.         Would you describe the extent, degree or percentage of permanent disability you would expect the patient to have based upon reasonable medical probability?

d.         Would you describe the practical or everyday effect that this permanent condition or disability will probably have upon the patient?

e.         (In personal injury cases)  Do you have an opinion as to whether patient's injury, condition or disability was caused or aggravated by the injuries the patient received on              (date)?

f.          What is that opinion?

g.         Did you render a bill for your services?

h.         What is the amount of your entire bill (if patient hospitalized, establish amount of hospital bill also)?

i.          In your opinion, was this bill reasonable and necessary?

/ram

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