Show And Tell
Recovering Non-Economic Damages
Humans constantly judge. How was that restaurant? He seems nice. She is awfully thin. He is very fat. This speech is really boring! Often these snap judgments are based on our emotional reactions to the subject rather than rational, factually based knowledge. In the alternative, if we don't care enough to pass judgment, it is frequently because the subject has not triggered enough of an emotional response to justify the effort.
We want our juries to be judgmental, but we must direct those judgments to the conclusions we want them to draw. If we can direct jurors to reach desired conclusions on their own, they will readily adopt and act on them. To the extent we simply tell jurors what to think, what to conclude, and what to do, we run the risk of their disagreement and ultimate rejection.
Non-Economic Damages
Non-economic damages are those losses that affect the quality of life. They are often described as pain, suffering, disfigurement, loss of support, loss of services, or the generic, loss of enjoyment of life. Non-economic damages are generally intangible. The nature of these damages makes it difficult to quantify them in monetary terms; however, they are at least as valuable as the attendant economic losses.
Non-economic losses, by their very nature, relate to experiences. Because experiences are often very subjective, it is difficult to convey them to a group of jurors who believe they have been called to duty as "the triers of facts." Jurors will not relate the intangible non-economic harms our clients suffer unless they are compelled to see and feel them. If they do not relate, they will not compensate.
We will only recover those non-economic damages that jurors believe. Jurors tend to believe what they see, hear, taste, touch and smell. We should, therefore, make every effort to make non-economic damages appeal to one of the five senses.
In his book, The Essential Update - A Plaintiff's Attorney's Guide for Personal Injury and Wrongful Death Cases, David Ball lists a number of factors that motivate jurors to give and refrain from giving money for damages. Many of the factors he lists for both giving and not giving have strong emotional components. For example, the desire to "help" by giving or feeling that the situation is "hopeless" as a justification for not giving are emotional reactions. Therefore, we should pay some attention to how to present information in such a way as to influence emotional responses.
Focus Groups
Focus groups can help us find ways to make non-economic losses real. Although this is not meant to be a "how to" on focus groups, some background is helpful. We usually set aside an entire Saturday and do two (2) separate focus groups - one in the morning and one in the afternoon. We use the afternoon session to make adjustments and re-frame arguments, positions, and exhibits based on what we learn in the morning session. We can use focus groups to gauge emotional reactions to exhibits and testimony.
We held a focus group recently to help us evaluate a wrongful death case in which radiologists failed to diagnose breast cancer. Only two of the twelve members of the morning session were willing to compensate the surviving husband and adult son for non-economic harms and losses. Even at that, the two participants who were willing to do so were only willing to consider amounts averaging $87,500.
In the afternoon session, we incorporated language and statements made by participants in the morning session. We addressed some of the reasons the morning session gave for not wanting to compensate for non-economic losses. The corrections produced significantly improved results. Six of the ten afternoon participants were willing to include money for non-economic harms ranging from $417,468 to $1,000,000 with a median amount of $158,734, and an average amount of $389,078.
We attribute the difference between the morning and afternoon results to increased focus on damages generally and non-economic damages specifically. We spent more time defining the losses. We presented much more anecdotal and testimonial evidence of how the decedent's death affected the survivors. We asked the participants to describe the decedent based on what they heard and saw. They described her as:
- Family person;
- Loved by family;
- Great mother and wife;
- Kind;
- Warm;
- Community conscious;
- Compassionate;
- Hard working;
- "Reminds me of my sister;"
- Self-made;
- Community advisor;
- Intelligent; and
- Involved.
Some of these comments were based on photographs showing her in various settings - playing with her grandchildren and in meetings with employees. We liberally added anecdotes from depositions that attested to the decedent's love of family, support of friends, and community involvement. We changed our language and our approach.
Specific, Concrete, Sensory Details
If you have ever read a great novel and felt like you were there or that you actually knew the characters and how they felt, you have experienced the effective use of specific, concrete, sensory detail. Specific, concrete, sensory details are what make writing and speech come alive. They appeal to the five senses of sight, touch, hearing, smell or taste. They evoke emotion. They trigger memories and recollections of personal experiences. The use of specific, concrete, sensory detail can help us make non-economic damages more tangible. If we can help the jury feel the non-economic losses our clients feel, we can persuade them to compensate for those losses.
Perhaps because of the way we have been trained, lawyers have a tendency to summarize information. Summarization saves words, however, when we summarize, we make assumptions that the audience knows what we mean. For example, a summary statement of a wound care session might be:
Every morning, the home health care nurse comes to my client's home to change the dressings on her bed sore. The nurse takes off the old dressing, inspects the sore and cleans it which is very painful.
Although simple and compact, this recitation of events does not evoke emotion. The statement is simply a cold and colorless recitation of events. We simply tell the jury that our client was in pain and they may or may not take our word for that. The only thing they know about the pain the client felt is what we tell them. We have given them no description of what the pain looks like or how the client experienced it.
Rather than simply say "the woman was in pain," we can use specific, concrete, sensory detail to show the jury what pain looks like. We can cause them to respond. By describing the setting and how the woman looked and acted, we can lead them to conclude that "the woman was in pain" in a way that will lead them to act.
In contrast to the barren summary statement above, consider:
Each morning, at about 9:00 AM, Sally Robinson, the home health care nurse from St. Luke's Home Health Care, arrives at the little white frame house at 213 Agnes Street. Mae Jones lives with her daughter Jackie. They have lived at this house alone for the last eight years since John, Mae's husband, died.
Nurse Robinson climbs the concrete steps up to the grey wooden porch with peeling paint. She rings the doorbell next to the screen door and waits for Jackie to let her in.
Inside, the little house is sparsely furnished, but Jackie keeps it neat and clean. It smells of morning coffee and Pine-Sol. Next to the Lazy-Boy from which John always watched the Chiefs' games, 12 pill bottles sit, neatly arranged on a small wooden table.
In the bedroom down the hall, Mae Jones lies in an adjustable hospital bed covered by a thick foam egg shell mattress. Jackie is at the foot of the bed tugging on the white fitted sheet that constantly slips off the oddly shaped mattress. Mae's face contorts as she strains to use the chrome metal side rails of the bed to pull herself up and make Jackie's task easier.
"I've got it, Mom. Just relax," Jackie says as she slips a corner of the sheet down over the edge of the mattress. May releases her weak grip on the rails and breathes heavily from the exertion as she follows Jackie's advice. She allows her head of thinning brown and gray hair to fall back on the pillow. Her dark sunken eyes are surrounded by even darker circles. Cheeks once full and pink are now hollow and pale. "Okay, sweetie," says Mae with a thin smile.
The doorbell rings. Mae's smile flattens and furrows appear on her brow. Jackie glances at her and lightly pats the thin parchment-like skin of Mae's naked right foot. She gives a quick warm rub to Mae's leg before she goes to answer the door to admit Nurse Robinson.
When Jackie returns to the bedroom with Nurse Robinson, she automatically moves to Mae's right side. As she stands there holding Mae's hand, Jackie feels her mother's hand grip hers harder and harder as the Nurse turns Mae onto her right side and begins to quickly peel back the adhesive edges of the 6x6 Duoderm pad that covers the Stage IV bed sore on Mae's left hip. Spots of red blood and small patches of dead flesh adhere to the adhesive edges. Mae's eyes squeeze shut and a tear rolls slowly down her cheek as she grips Jackie's hand harder. A faint odor of rotting meat becomes more pronounced as the pad is removed and the wound exposed to the open air.....
Which of these two passages is more effective? Which is more likely to lead the jury to the desired judgments?
The passage above is specific. It identifies common items found in lots of households - PineSol and La-Z-Boy chairs. It uses brand names that people know - Chiefs and St. Luke's. The details are concrete and sensory. The house is a little, white frame located on a specific street. We all know what coffee and PineSol smell like. What person hasn't turned up their nose when they smell rotting meat in their refrigerator? Mae Jones is described in some detail. Jurors are able to visualize.
Tell First, Then Show
We should prepare damage witnesses to describe what they observed that led them to believe the plaintiff or decedent was in pain or suffering. They should describe their observations using active constructions and verbs as much as possible. If they describe what they saw, smelled, heard and touched using specific, concrete, sensory details, they will never have to tell the jury that the plaintiff or decedent was in pain - the jurors will reach that conclusion on their own. As an added bonus, vivid descriptions of first-hand observations are seldom objectionable.
Concrete sensory details can also be used to supplement and describe photographs of injuries or the items listed on your "Harms Chart." Avoid the temptation to simply place a photograph depicting damages in front of the witness and then ask if the photo fairly and accurately depicts the injury. Instead, start with eliciting a complete and specifically detailed description of the scene, ending with a detailed description of the injury or harm. Only after a full description has been elicited and the scene set should a photograph be shown to the jury. If the description has been accurate, specific, concrete and sensory, the photograph should be a visual manifestation of the description. The jury should then find the witness who described the scene even more credible and interesting.
Photographs of injuries can be effective if used appropriately. Sometimes we rely too heavily on photographs. We blow them up to the size of a small car and then expose them to the jury over and over. After looking at the gore for extended periods, the initial emotional impact fades and the photographs lose power.
CONCLUSION
Focus groups can be used to gather damage information and then the use of specific, concrete, sensory details can make non-economic losses tangible. If a jury can feel the harms our clients suffer, they will be much more likely to compensate for them.
