Now that you have elevated damages to their rightful place and put an end to belittling pain, you are ready for the final step, Audacity to Ask for Full Value.
Believing & Validating
Sometimes I hear lawyers say they’re concerned that asking for full value may create a backlash from the jury. They worry that the jury will turn on them and find against their client in a case where they were otherwise winning. My response to that is you need to trust the process and have faith in jurors.
If you have earned jurors’ trust by advocating with honor, is the jury going to punish you just because someone on the jury may disagree with your assessment of damages? Not if they can tell you genuinely believe in the amount suggested and you provide reasonable validation. Likewise, if jurors believe your client was seriously hurt by the defendant, are they going to turn around and punish your client for seeking maximum justice? Jurors are not that shallow.
Together, believing and validating take away the worry about a backlash simply because you had the audacity to do the right thing and ask for full justice.
Validating refers to using fair and reasonable damage models that make sense and fit the facts of your case.
Validating with per diem damage model
People live moment my moment, hour by hour. They do not get to skip ahead, even though they would like to sometimes when things are going bad. They’d like to skip a bad day, a bad week, a bad year, but it doesn’t work that way. Ms. Jones’ injury is with her all the time. Sometimes it’s worse, sometimes it’s better, but it’s always there flickering, flaring, or somewhere in between. It’s even there when she’s sleeping because she has to keep changing positions to stay comfortable. Her life expectancy is 40 years. No one knows for sure how long she’s going to live, she may live longer than that, she may live less than that, but that is the best evidence we have because it is based on a large database. If you were to take merely $10 an hour over her life expectancy, that would come to $3.5 million.
[As I am delivering the final number for pain and suffering based on the per diem model, my trial partner will display a demonstrative aid on the screen that confirms the math: 365 days x 24 hours/day x 40 years x $10/hr. I do not do the math myself, rather simply have it displayed to the jury so they can see the backup. You can do the same process for more than one of non economic items listed in the jury instructions.]
Validating with multiple of economics damage model
The cost for doctors to spend a short amount of time, in the big scheme of things, trying to help with an injury that can’t be cured pales in comparison to the human costs of having to live with
the injury around the clock for a lifetime. That is why using a multiple of 5 to 10 times the medical expense is a fair and reasonable measuring stick.
Validating with “what if it was only” damage model
If your client has multiple injuries, you can do a mini-damage argument on each one. Tell the jury, what if the only injury my client has was the shoulder injury. Then validate with a damage model. Do the same for each injured part of the body. Finish by pointing out that the total amount is greater than simply adding up the three separate injuries. The cumulative impact of having to deal with all of them at once is more than sum of the parts. The total is just the starting point of the discussion.
Validating with the experiment model
If someone came to your client to recruit them for an experiment because they wanted to study the effects of a particular injury over a lifetime, the person tells your client, before agreeing to a fair and reasonable amount to go through it, we need to make full disclosure as to the kinds of things you can expect. Then, you go through all of the suffering, covering their whole life with the injury, including past, present and future.