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Noneconomic Damages in Trial


One of the greater obstacles of trial advocacy, at least in the personal injury jury trial context, is dealing with noneconomic damages. When I say noneconomic damages I am referring to those damages which cannot be treated by way of medical treatment. For instance, if an individual has a back surgery which costs $100,000 well that is an economic damage as it pertains to an actual dollar figure spent or currently owed for a medical operation to treat an injury. On the other hand, if an individual suffers brain damage for which there is no current medical technology available to treat then there is no money to be spent for treatment. This is an example of noneconomic damages. That being said, an argument can still be had that the individual should be compensated for his or her brain damage even if there is no treatment available to cure the condition. Cash may not be able to cure the injury but it is the best instrument we have available for making the injured individual whole again.

So the first step for counsel is to make sure that the jurors understand what noneconomic damages are and that though there is no medical cure available, that money is the best solution available for remedying the situation for the injured individual. This should be one of your goals in jury voire dire. The goal specifically being to determine which jurors are willing to compensate an individual for noneconomic damages. Of course you will voire dire the jurors as you always do by asking jurors which way they lean towards. Once they tell you then lean towards giving money for noneconomic damages or not giving money for noneconomic damages the next question is always "tell me more about that". Essentially depose the potential juror by following that line of questioning all the way down the rabbit hole. Then of course when you exhaust this witness you will ask "does anybody else feel this way"? Then pursue this same line of questioning with each potential juror. You are going to want to exclude jurors from your panel who are predisposed to not give money for noneconomic damages.

While conducting your voire dire, and trial for that matter, be selective with your language. The jurors will need to be able to understand the language you use when you speak to them. These topics are foreign to jurors to begin with so you need to use very common language when explaining these topics. For instance when we use words like "compensation" "award" "noneconomic" we tend to confuse the jurors. Thus we need to explain to the jurors that this money is simply the best remedy available to make the hurt person whole again. You might call this the "fair trade" value for the level of the injury. It is important that the jurors get off to a good understanding in voire dire so that they do not proceed through the entire trial under a misconception.

Know that defense counsel may well try to use these noneconomic injuries against you in trial. Defense counsel may argue that money paid for these noneconomic damages "can't make the pain go away". In this way defense counsel seeks to persuade jurors not to grant money for these injuries. This argument is improper and effectively seeks jury nullification. Defense attorneys may go on to argue that big verdicts hurt the economy and argue public policy considerations to that end. As plaintiff's counsel you should file objections in limine so as to dispose of these expectancies ahead of time.

When arguing for noneconomic damages always keep the principle of anchoring in the back of your mind. The concept of anchoring is that the jurors will typically use any solid number they can attach to as an anchor for determining the value of damages. They may say that since the back surgery was $100,000 that the plaintiff should get "double" this amount, or "half of" this amount. Since you want to have the highest payout for noneconomic damages possible be sure to word your language appropriately. To this end call the noneconomic damages "the greatest of the damages" or "the most serious of the damages". In this way the jurors will anchor the economic damages, in their minds, as being less than what the noneconomic damages should be.

One of the larger obstacles you will face with regard to noneconomic damages is requesting money for caretakers. The reason for this is because many jurors believe that family is meant to remedy this situation by becoming caretakers. Many jurors believe that this is what family is for. You may want to voire dire on this issue in jury selection to weed out any jurors who have this notion. In voire dire find out if any potential jurors have been caretakers in the past. If they have then they will understand that significance of this burden and will likely make for good jurors on your case. During your case make it clear that the Plaintiff is guilt ridden by the idea that his or her family will be plagued with the obligation of caring for the plaintiff for the rest of their days. Argue that it is the defendant's duty to relive the family of this burden by paying for trained professionals to care for the plaintiff so that family members can be family members again. Always be sure to let the jurors know that it is you as the attorney who is asking for money for your client, rather it is not the client or the client's family requesting it.

To defeat the family as caretakers argument be sure to put on an expert or treating physician who can explain why it is safer and better to have professional care takers as opposed to family member's fulfilling the task. Professionals know what they are doing, they know what dangers to look out for. You can likewise put on a marriage counselor or family therapist to talk about how imposing this caretaking duty on the husband or wife will diminish the husband-wife relationship and transform that relationship into a care giver-patient relationship. It is difficult to carry on as loved ones when one of the spouse's job is now full time caregiver.

If the family has already hired and paid caregivers to effectuate services this can be to your benefit. Now you have hard numbers which you can show the jury. All you have to do now is extrapolate those same expenses into the future in order to estimate future expenses required for caring for the plaintiff. The Jurors now have tangible numbers to use to compute future expenses.

A solid technique to push for higher verdicts is that of implementing the use of a charitable foundation. In essence, when you have a big case with serious damages then it might be wise to implement a charitable foundation. Essentially, this would be a foundation created in the name of the plaintiff. The purpose of the foundation might be to help victims of this same type of injury, or the purpose might be to avoid injuries like this one in the future. Whatever the case may be, when the jurors understand that part of the money is going to a charitable foundation then they will likely become more receptive to giving larger sums of money. This foundation suffices as legitimate evidence as the foundation provides a method for ameliorating some of the plaintiff's emotional pain.

For a much more thorough understanding of these concepts please read David Ball's book on Damages. David Wall and Don Keenan are two of the foremost authorities on modern plaintiff's trial advocacy. Everything I have written above comes from these two experts. They can provide you with a wealth of information.

Categories: Personal Injury