In chapter two of David Ball on Damages, author and nationally renowned consultant David Ball discusses seven key obstacles that lawyers face in obtaining noneconomic damages for their clients, and how to overcome them.
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Noneconomic Damages*
This chapter is about some principal obstacles to fair noneconomic damages—the kind of damages jurors usually have trouble with.
Obstacle 1: No Worthwhileness
Jurors rarely see the purpose of money for noneconomic damages. For one of David Ball's many ways of overcoming this obstacle, see p. 31.
Obstacle 2: No Way to Calculate
Jurors don’t know how to figure out the amount. Gimmicks (such as a per diem argument) can help some individual jurors, but your favorable jurors need more to be able to persuade jurors who want to give less.
Here’s a common introduction to calculating noneconomic damages. It happens in jury voir dire:
Prospective juror: I wouldn’t know how to figure out how much money there should be for pain.
Counsel: (giving the worst possible response) Well, you know, I can’t tell you how to do it. Nobody can, not even Her Honor. You’re just supposed to use your own life experiences and your common sense.
But no life experiences prepare a juror for anything like this. Nor does common sense. If you cannot explain how to do it, and if neither the judge nor anyone else can, jurors conclude that (1) it can’t be done right, and (2) since no one knows how to do it right, it should not be done.
So you must teach jurors exactly how to figure out the noneconomic damages figure. The dialogue above should go like this:
Prospective juror: I wouldn’t know how to figure out how much money there should be for pain.
Counsel: (giving the best possible response) Don’t worry about that; we’ll make sure you know how by the time you have to do it. Right now, I’m just asking you this: Some people—even when they know how to calculate the amount—don’t think it’s right to allow money for pain. Other people are OK with it. I’m just asking which you’re closer to.
And no matter their answer, follow up with “Please tell me about that.” (See more about this voir dire technique in chapter four [section 4-3-2, p. 84]. And see how to teach jurors to “calculate” noneconomic damages in “Scales,” section 8-14, p. 238.)
Obstacle 3: Can’t Define “Compensation”
Jurors don’t know what “compensation” means. Reward? Entitlement? Happy money? Punishment for the defendant?
You make matters worse by saying anything like, “We submit the figure should be $________.” This ghastly piece of legalese cannot help or guide even your most favorable juror. The fact that you “submit” it actually makes it suspect and undermines—if not kills—the ability of your favorable jurors to argue for it in deliberations.
And when you offer no noneconomic figure at all, you leave your favorable jurors with no guidance, so don’t be surprised when they don’t deliver. Even in venues where you cannot ask for a specific figure, you can and must tell jurors how to arrive at one. (See, e.g., p. 238, section 8-14, “Scales.”)
So find a good way to explain exactly what compensation means. It means the “fair-trade value” of the harms—the level of money it takes to equal the level of harm. Explain that this is the oldest way we have of valuing anything. When great-grandpa bought a cow in exchange for five goats, five goats were the fair-trade value of the cow. So when you buy a heifer today for $1,400, that’s the fair-market value of the cow. It’s the same with harms in a case—how much money equals the value of the harms?
Jurors must also understand that compensation does not mean “reward,” like a lollipop to a kid with a bruised knee. This is one reason you must never use the word “award”—that word is legalese, which many jurors take to mean “reward.” “Reward” means prize, and jurors don’t give prizes.
Remember this: insofar as you allow jurors to start deliberations with misconceptions about what “compensate” means, they will use those misconceptions to your client’s disadvantage.
Obstacle 4: Defense Plea for Jury Nullification
Defense attorneys often make wildly improper arguments. For example, some argue, “All that money for pain and suffering can do no good because it won’t make the pain or suffering go away.” This begs for nullification. Even in venues where nullification is allowed, counsel cannot ask for it.
It’s a request for nullification because “making the pain go away” is not relevant to deciding how much pain compensation should be allowed. Money for anything that can make pain go away is economic, not noneconomic. Money to compensate for the pain itself is for pain that could not or cannot be made to disappear. Arguing otherwise misleads the jury. As a plea for nullification, it should not be allowed.
For this and other improper defense arguments, make sure you routinely file objections in limine, supported by law and public policy. If you lose the motion, object again during trial. The judge might change her mind. If not, you might be able to make good law on appeal.
Defense attorneys also frequently use tort-“reform”-based arguments: that big verdicts hurt the economy, enrich lawyers, etc. This is improper for a variety of reasons. Deal with it in limine. If you let the defense give the argument in closing before you object, you invite disaster: a misguided or biased judge will overrule the objection. And even if the judge sustains, a curative instruction won’t unring the bell.
If you lose such motions in limine, be extra careful to make sure the jurors understand the law—preferably as early as voir dire (see chapter three) and certainly in closing (see p. 225, Essentials for Closing—Massaging).
Obstacle 5: Bad Comparison to Economic Damages
Jurors tend toward noneconomic verdicts that are some proportion, fraction, multiple, or equivalent of the economic damages figure.
So if medical bills and lost wages are $125,000, jurors are likely to argue that the plaintiff should get half that amount, or double (once in a while), or that amount exactly, or “just a little more” or “not as much as.” This is because they seize on anything tangible as an anchor to help them “calculate” the intangible—even when there is no relationship between the two.
This makes your economic damages figure extraordinarily important—and, sometimes, extraordinarily dangerous. In a case with $125,000 in economic damages, jurors are likely to add no more than a few hundred thousand for noneconomic damages. With identical noneconomic harms, $2,000,000 in economic losses is almost sure to result in a far greater noneconomic verdict than just a few hundred thousand.
This is true especially in venues that don’t allow you to specify noneconomic figures. In many such venues, you can call the noneconomic damages “the greatest harm in the case.” Point out that the money for future medical care all goes to other people to help take care of John—John never gets a cent of it, and the money for lost wages only makes John even with where he’d have been if the wrongdoing had never happened. So none of that money makes up for the biggest losses, the harm to John himself. That argument gets jurors to compare “biggest” to the smaller anchor of the economic amount.
Obstacle 6: Why Pay Family to Be Caretakers? Why Pay for Professional Care When the Family Can Do It?
Money for the family for its caretaking is often hard to get: “People marry for better or worse; loving kindred gladly help”; “Money has nothing to do with it—that’s how families express their love.” Such beliefs lead some jurors to withhold money for professional care.
As Susan Macpherson teaches, start by identifying prospective jurors who are or have been caretakers. Some who care for, say, elderly parents understand what it does to the caretaker’s life—but they think that this is what everyone should do, including your client’s family. Others think that caretaking is a living hell forced on them. And most jurors resist helping a plaintiff who has the same problem they do.
Jurors not already serving as caretakers may be likely to do so in the future, so ask what their thinking is at this point.
To overcome the mindset that leads jurors to expect your client’s family to be the caretakers—and to do it for free—show four things:
Forcing the family to provide care for harms the defendant caused is unfair. The family does not begrudge doing it and will do it as long as necessary. But the defendant’s responsibility is to relieve the family of that burden and return the family to being family members, not permanent caregivers.
Usually, the injured plaintiff is deeply disturbed, depressed, and plagued by guilt because his family is trapped into having to take care of him. This is one way in which the defendant’s lack of responsibility has piled harm upon the original harm (see Fundamental Five, p. 18). The proper verdict can 100 percent fix this part of the harm.
If your client is unaware of the care his family is providing (because, say, he’s in a coma or has severe brain damage), make it clear that it’s not family members who are asking for money for their work. It is you, as the protector of their legal rights, who is asking because you are required to do all that the law allows to help them.
Consortium: The brilliant Los Angeles attorney R. Rex Parris teaches that in states that allow it, you should pursue your consortium claim as a separate case with its own separate trial. In states where you must do both in one trial, consider assigning one attorney to everything having to do with the principal plaintiff’s case and a separate attorney to the spouse’s consortium case. Overlap as little as possible. This separation keeps the principal case from overshadowing the consortium claim and minimizing the consortium verdict. The separation also highlights both sets of harms, potentially increasing the size of both verdicts.
Show that family-provided care diminishes a husband-wife (or whatever) relationship into a care giver-patient relationship. Show how the specifics of the care (such as help with toileting) limits and destroys many normal family relationships. A good social worker or marriage counselor is well worth the cost of providing testimony about this. And you must not be delicate about delineating the distasteful tasks. You need not be graphic, but you must provide enough information—starting no later than opening—for the jurors to know that someone has to wipe someone else’s butt.
Show that family-provided care is neither safe nor good, no matter how hard the family tries. Trained helpers provide better and safer care. Even when a family member happens to be a professional caregiver, an expert or treating physician or therapist can explain why nonfamily care is always preferable. In part, this is because an outsider’s objectivity is unimpeded by emotional attachments. Give examples of why this is important. For instance, a family member can be reluctant to put the patient through enough discomfort during home physical therapy to reap the therapy’s benefits. This is because the family member, even when a professional, is less likely than an outsider caregiver’s employees to have the emotional fortitude or personal authority to push the patient to do what needs to be done. This is true even for physicians, which is partly why they do not treat their own family members.
Focus on replacing the family’s amateur care with that of paid caretakers— trained to deal with specific issues, if that’s what’s needed.
Norfolk, Virginia, lawyer Jeffrey Breit effectively tells juries that professionals are trained to spot problems that untrained family cannot, such as early signs of bed sores. By the time a family member recognizes the problem, it can be too late. So allowing family to continue as caretakers unnecessarily endangers your client. This is particularly powerful because jurors do not consider safety a frill.
Showing that better care is needed than the family can provide also undermines the common defense-juror argument: “The plaintiff has been getting along fine until now without all that money, so why allow so much now?”
Get the focus off asking for money to pay the family. Many jurors find it offensive that a wife, for example, would ask for money to care for her husband. Explain—in opening—that you are citing the family’s number of hours and the value of those hours only so the jury can understand the enormity of the job involved in caring for anyone with these injuries. Then explain that the family members are not asking to be paid; it’s you who are protecting their rights, and your client feels badly at this intrusion.
Lost services. Jurors’ resistance diminishes when you show that someone was actually hired and paid. And those amounts provide anchors for the cost of future services. In many jurisdictions, you can claim “loss of services.” Because they can be time- and market-based, you can easily valuate any services around the home that your client usually did, but could not or cannot do now. Dad used to mow the lawn and paint the garage, but now someone else has to do it. An economist can attach a figure to these tasks, or anyone in the family can total the hours and multiply by the customary local hourly wages for such tasks or show payment receipts.
When the family has had no money to pay for these services, things may have fallen into disrepair. This adds to the money you can claim—first for the value of the lost services, and second for the plaintiff’s distress that his family had to endure living in the midst of disrepair.
Obstacle 7: “Even If That’s the Right Amount, It’s Far Too Much for Any Individual”
Sometimes you can find unique and worthwhile uses for money. For example, the family of a daughter killed in a traffic accident might find solace in starting, and raising money for, a charitable foundation named for their daughter. The foundation would serve the purpose of finding better ways to teach traffic safety “so that her death will mean something.” Since the concept of the foundation provides a way to ameliorate the emotional pain, it should be legitimate damages evidence.
In voir dire:
“Who here has ever heard of the Sally France Smith Road Safety Foundation?”
In testimony:
Q: Mrs. Smith, how have you been trying to come to terms with the death of your daughter?
A: Well, it has helped that we’ve started a road safety foundation we’re raising money for; that will help if we can raise enough money for it to make a difference.
Giving jurors this kind of worthwhile purpose for money helps overcome many reasons they have for withholding it.
Of course, the most valuable use of this approach is that it genuinely removes some of the family’s anguish and reshapes that emotional energy into something that will help the community. So this may be one of the most valuable suggestions you ever make for your client, and it’s a Reptilian bull’s eye (see Reptile).
Connecticut’s Ernie Teitel teaches that the establishment of a foundation is necessary in every significant case—and that it gets into evidence for a variety of reasons. For example, the defense usually suggests that your client is driven by wanting to get rich. You are entitled to show that that’s false; your client wants to instead assuage his loss by being able to help others.
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(*[P]lease remember never to use the term “noneconomic damages” in front of a jury.)
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Learn more about how the templates, strategies, and insights in David Ball on Damages can help you win a just verdict for your client.
