Getting Bigger and Better Damages

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What’s one of the biggest mistakes made by attorneys seeking damages? 

Separating liability from damages and leaving the damages presentation to the end of their case.  It’s important to weave damages — especially evidence supporting claims for emotional distress damages — throughout your case.

It’s an easy mistake to understand after all — as attorneys we’re trained to prove the elements of the case, and those elements are separated into elements of liability and damage.

However, jurors widely believe that plaintiffs exaggerate their harm in order to get a larger award of damages. The consequence of this belief is that jurors become naturally resistant to hearing information about emotional distress damages when separated so distinctly from evidence pertaining to liability.

Jurors actually disconnect from an emotional distress damages presentation which they feel is too separated from the liability case.

Don’t automatically exclude emotional distress damages-related evidence from liability evidence.  Find a way of including it.

The best emotional distress damages presentation is one that will weave in information supporting an award of damages, before you get to a damages section of your case.

For instance, let’s say that your client has lost her job and you plan on introducing evidence of how devastating the loss of the job was to her. Presenting evidence as “background,” showing her engaged in teamwork with coworkers, perhaps photographs of your client happily interacting with her coworkers at a company picnic, showing your client’s dedication to her company, are all important aspects which can help explain why your client experienced a high level of emotional distress at her termination.

You want your client’s damages to flow from your earlier evidence.  Not just be an abrupt end to a story, which can come off as an afterthought

I once represented a woman who used a service dog for a medical condition unrelated to loss of sight. She kept getting thrown off local commuter buses because drivers told her that unless her dog was a seeing eye dog, she could not ride the bus (a violation of state and federal disability laws). As background at trial, our client talked about her upbringing, and how her mother had told her that no employer would hire her because of her medical condition. She described her joy at finding a job which would suit her abilities, and her terror at the thought of losing the job because she was unable to get to work on time after being thrown off the local commuter buses.

Instead of just demonstrating the facts of her having a service dog and being thrown off the bus we weaved her background into the liability portion of the case so that her emotional distress damages were a natural and logical extension of that background— rather than an abrupt addition to the case, done at the tail end.

By weaving damages evidence into the early portions of your case as background, you ensure jurors will accept evidence of damages less skeptically, and see those emotional distress damages as reasonable and logical.

That is, without a doubt, a winning strategy.

Now, go after those damages.


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