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Proving Damages

Fairfax Injury Lawyer Brien Roche Addresses Proving Damages

Brien Roche

Proving damages can always be a significant challenge on behalf of an injured person.  Most people sitting on a jury who are asked to award damages to an injured party are being put in that situation for the first time. Most of them have no idea as to what the measuring stick is for awarding damages.  The court of course gives some guidance.  Likewise the lawyers provide some guidance.

Proving Damages and Maximizing Recovery

In terms of trying to maximize a recovery for a plaintiff, there are some general principles that may be helpful.  In Virginia the plaintiff is allowed to ask for a specific amount to the jury.  Likewise the amount that is asked for in the suit papers can be disclosed to the jury.  It generally is a good idea for the plaintiff, through counsel, to disclose to the jury precisely what it is the plaintiff is asking for.  That amount should be as specific as possible.  Under the Wakole decision from the Virginia Supreme Court, the plaintiff is now allowed to break down into different categories the amount that is being requested.  That type of mathematical certainty provides some degree of guidance to a jury.

Proving Damages Through Anchoring

In human communication there is a concept known as “anchoring”.  What anchoring means is that a particular idea may be planted in a person’s head that somehow relates to the issue at-hand.  That idea then becomes anchored and may become the basis for the person resolving the particular issue that they’re asked to resolve.

For example in a death case, if the jury hears that the contractor who caused the death was involved in a $5 million contract at the time of the person’s death, that may have some impact on what the verdict is.

Talking Money

Under any circumstances it is probably important to begin the money conversation with the jury early in the case i.e., either during jury selection or at least during the opening statement.  On behalf of the plaintiff it’s important that whatever amount is mentioned be reasonable.  That amount should probably also be on the high side but it should be tempered at all times with the concept of reasonableness.  When people are confronted with money decisions there are a number of studies that show that they tend to become more conservative.  Even though a jury is not awarding money out of their pocket, it’s amazing that jurors tend to be conservative more often than not in terms of awarding one person’s money to another person.

Those general concepts need to be kept in mind in terms of how to deal with a jury in terms of awarding damages.

Personal Injury Damages

Within the world of the personal injury, damages can come in a number of different forms.  The most common form of damages is some physical injury to the body.  It may be a cervical injury, a lower back injury or a broken arm.  That type of physical injury may then in turn cause certain emotional or non-tangible injuries consisting of embarrassment or humiliation associated with the injury and pain and suffering. 

Pain and Suffering

Pain and suffering is frequently a large component of most personal injury claims.  The pain and suffering becomes subject to testimony certainly from the plaintiff and then also the treating physician in order to make it more real.  The way that pain and suffering are made real is through live testimony typically from the plaintiff who explains to a jury what it is that he or she has gone through and how intense the pain was and how long the pain lasted. 

It can also be helpful to bring in lay witnesses who can testify as to what the plaintiff’s condition was before the injury and then what the plaintiff’s condition was after the injury.  That is a good way to give the jury a picture of what the plaintiff has been through.

Loss of Income

Another component of damages are lost wages.  In order to prove lost wages you should have a report from a doctor confirming that there was a period of time when you were not able to work.  You then need to be able to prove what the actual wage rate was that applied during that period of time.  That normally is proven through a letter from the employer. 

Sometimes loss of income can be difficult to prove where a person is self-employed.  Any of you who have ever been self-employed know that your hours may be irregular and there may not be any set period of time when you work.  As such, even though you may not have been able to work between 9 and 5 on a particular day you may have made up that work time on another day.  Insurance companies are certainly aware of that. Frequently the best way to prove an actual wage loss for a self-employed person is to show the differential that occurred from one month to the next or if income tends to be seasonal then to show what the income had been during that same month the year before.  The differential then may be evidence of what the wage loss is.       

Our Senses Are Wonderful Things and Must Be Treasured

We take for granted the five senses that allow us to make our way through life.  Any injury to these senses may be categorized as a catastrophic injury.Sight may be the dearest of those senses although that is subject to question.  Many people do not appreciate the sensitivity of the human eye.  It can actually spot the light of a candle 14 miles away.  When your visual perception is described as being 20/20 what that means is that you can clearly see an image such as the letters on an eye chart from a distance of 20 feet.  On the other hand, having vision that is 20/100 means that  you need to be five times closer in order to see those same letters.

Color blindness is something that principally effects men.  Ten times as many men are color blind as are women.  All babies are born color blind at birth and acquire that ability to perceive colors as they mature.

People who have lost the ability to hear maintain that the loss of that hearing is more profound than the loss of any other sense, even the loss of sight.  The reason for that may well be that we communicate our emotions through our voice.  The inability to communicate those emotions is a tremendous human loss.

Noise

The word “noise” itself comes from the same root as nausea which means sickness.  As such, noise indeed can cause nausea.  It can also cause an increase in blood pressure.

Oddly enough even small amounts of noise actually effect the human pupil in the eye.  Any noise causes the pupil to increase in size, i.e. to dilate, thereby allowing more light to come into the eye.  This excess of light impacts visual acuity.  When you are doing something that requires close visual attention it is probably best to do it in a quiet environment. 

Noise, however, does serve many purposes.  One of those purposes is teaching children how to speak.  The vast majority of a child’s knowledge of language is acquired simply through background conversation, i.e. hearing other people speak even though they are not actually speaking at the child. 

Our sense of taste is focused around taste buds of which there are approximately 10,000 that are spread over the tongue, palate and inner cheek.  These taste buds are the primary defense against poison.  As we get older, these taste buds do die off and their ability to regenerate is not the same as for a young person.  As a result, the elderly tend to have less sensitivity to taste than do younger people. 

Touch and Smell

The sense of touch is based not only on physical contact but it is also based on near contact.  The nerves that are known as the proprioceptors are those nerves that allow us to gauge exactly where our body parts are.  It is these nerves that allow us to scratch the back of our head and to know where our left leg is even though we may not be able to see it. 

The most sensitive parts of the body are the lips, the back of the neck, the fingertips and the soles of the feet.  The least sensitive is the middle of the back.

The sense of smell is a sense that can be lost through an impact to the brain.  This sense oddly enough has a rather keen “memory” in that the human brain can, with a high degree of accuracy, recall smells that it has experienced even in years past. 

Catastrophic Injuries

Catastrophic injuries require special attention. Catastrophic injuries might be defined as ones involving total and permanent disability, the total loss of earning capacity,enormous past and future medical expenses, custodial expenses, and pain and suffering. Theses types of cases take a staggering toll on the victim. The predicate of proving the case is medical testimony establishing the permanency and the totality of the injury and the need for lifetime medical care. It is the medical testimony likewise that establishes the foundation for future rehabilitation, the need for structural modifications to the home, and the need for personal care attendants.

The role of the economist is to affirm what those costs are in terms of present value both as to medical care and loss of income.

In large measure those determinations are based upon the work life expectancy and/or the life expectancy of the Plaintiff which are governed by either state mandated tables or publications from the U.S. Government.

Loss of Services

Another component of these damages are what is typically called loss of services, i.e., the loss of services of a wife or a husband as a homemaker or attendant at home. The value of that frequently is difficult to pinpoint. That again is the role of the economist.

During the voir dire process it is critical that members of the potential jury pool be identified who might be unwilling to award an amount of money that is commensurate with what is called for based upon the evidence and the instructions of the Court.

Emotional Damages of Children

Emotional damages to children are frequently difficult to prove but may be compelling.  This may be especially important in instances where the child is not the direct victim of the injury but rather is a witness to a horrific injury to a loved one.  The general rule in most jurisdictions in terms of allowing a child or any party to recover for those types of damages is based upon nearness to the injury scene, nowness in the sense of the person’s reaction being immediate and finally closeness to the actual victim. 

Children tend to be less verbally communicative about their emotions than most adults.  However, children do tend to act out events.  It is this acting out that can provide a significant insight into the emotional or psychological impact of the event.  This is something that the appropriate health care professional can probably draw out of the child. 

School Records

In addition, obtaining school records may be critical.  Overall school performance may be an indice of the effect of the injury and likewise observed performance within the classroom by the teacher may provide compelling evidence.  If the child has been seen by a guidance counselor or speech therapist at school or outside of school then that type of evidence may likewise be dramatic. 

Proving Damages Through Biomechanical Engineers

Biomechanical engineers can be of great assistance in certain types of injury claims. Such an engineer is able to analyze the nature and extent of physical forces that are imposed on the body and explain how that can result in serious injury. Although they typically are  not used as accident reconstruction experts they can indirectly be used for that purpose as they suppose that collision occurred in certain fashion based upon evidence presented.

In terms of trying to find biomechanical engineers, excellent places to look are academic centers and  by reviewing professional and scientific journals.These professional journals not only will bring you current as to ideas these professionals are bouncing around among themselves but also will help to identify those people in the profession who are at the forefront and might be receptive to assisting with your case.Finding an expert in this fashion also avoids the taint of using a search service for this purpose.

One of the early cases on the admissibility of this type of testimony is Mannino v. International Manufacturing 650 F.2d 846 (6thCir. 1981) which addressed a number of evidentiary issues as to biomechanical engineers and in that particular case held such testimony was admissible.

See the highlighted pages for a review of Virginia case law on admissibility of expert testimony and the qualifications of experts.

Golden Rule Argument

The Golden Rule encourages that we treat others as we would want to be treated.  That rule however has little application in the courtroom.

The traditional rule across the country has been that counsel may not argue to the jury that they should do unto others as they would want others to do unto them.  That restriction has been applied mostly to the area of damages.  In particular, argument to the jury that they should award an amount that the jurors themselves would want awarded to them is not appropriate.  The standard instead is that the jury should apply the reasonable man standard and ask what the reasonable person or man would do in that circumstance.

Court Says Golden Rule Argument Inappropriate

In a case reported by the U.S. Court of Appeals for the DC Circuit, Caudle v. District of Columbia 707 F.3d 354 (D.C. Cir. 2013) the Court noted that where that argument is applied to liability, it is likewise inappropriate.  In this particular instance, Plaintiff”s counsel argued that the jury should ask themselves whether or not they would hesitate to speak up against their boss in this retaliatory discrimination case.  Likewise the Plaintiff’s counsel asked the jury whether or not they themselves would think twice about complaining about workplace discrimination and further asked the jury to put themselves in the Plaintiff”s shoes. 

Golden Rule as to Liability

Although some of the U.S. Circuits have held that the Golden Rule argument is appropriate where it applies only to liability, this court disagreed.  The court in this case said that the Golden Rule argument is improper regardless of whether it relates to liability or damages and awarded a new trial.

Also in this case the attorney for the Plaintiff asked the jury to send a message.  Although that technically is not part of the Golden Rule argument, it likewise is deemed inappropriate.  The court’s general instruction that the jury should put aside matters of prejudice, sympathy and fear was insufficient to overrule the bias created by this argument.

See injuries to minors also on this site. 

For more information on this issue, see the other pages on this site and also see the pages on Wikipedia.

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Contact Us For A Free Consultation

Proving Damages

Fairfax Injury Lawyer Brien Roche Addresses Proving Damages

Brien Roche

Proving damages can always be a significant challenge on behalf of an injured person.  Most people sitting on a jury who are asked to award damages to an injured party are being put in that situation for the first time. Most of them have no idea as to what the measuring stick is for awarding damages.  The court of course gives some guidance.  Likewise the lawyers provide some guidance.

Proving Damages and Maximizing Recovery

In terms of trying to maximize a recovery for a plaintiff, there are some general principles that may be helpful.  In Virginia the plaintiff is allowed to ask for a specific amount to the jury.  Likewise the amount that is asked for in the suit papers can be disclosed to the jury.  It generally is a good idea for the plaintiff, through counsel, to disclose to the jury precisely what it is the plaintiff is asking for.  That amount should be as specific as possible.  Under the Wakole decision from the Virginia Supreme Court, the plaintiff is now allowed to break down into different categories the amount that is being requested.  That type of mathematical certainty provides some degree of guidance to a jury.

Proving Damages Through Anchoring

In human communication there is a concept known as “anchoring”.  What anchoring means is that a particular idea may be planted in a person’s head that somehow relates to the issue at-hand.  That idea then becomes anchored and may become the basis for the person resolving the particular issue that they’re asked to resolve.

For example in a death case, if the jury hears that the contractor who caused the death was involved in a $5 million contract at the time of the person’s death, that may have some impact on what the verdict is.

Talking Money

Under any circumstances it is probably important to begin the money conversation with the jury early in the case i.e., either during jury selection or at least during the opening statement.  On behalf of the plaintiff it’s important that whatever amount is mentioned be reasonable.  That amount should probably also be on the high side but it should be tempered at all times with the concept of reasonableness.  When people are confronted with money decisions there are a number of studies that show that they tend to become more conservative.  Even though a jury is not awarding money out of their pocket, it’s amazing that jurors tend to be conservative more often than not in terms of awarding one person’s money to another person.

Those general concepts need to be kept in mind in terms of how to deal with a jury in terms of awarding damages.

Personal Injury Damages

Within the world of the personal injury, damages can come in a number of different forms.  The most common form of damages is some physical injury to the body.  It may be a cervical injury, a lower back injury or a broken arm.  That type of physical injury may then in turn cause certain emotional or non-tangible injuries consisting of embarrassment or humiliation associated with the injury and pain and suffering. 

Pain and Suffering

Pain and suffering is frequently a large component of most personal injury claims.  The pain and suffering becomes subject to testimony certainly from the plaintiff and then also the treating physician in order to make it more real.  The way that pain and suffering are made real is through live testimony typically from the plaintiff who explains to a jury what it is that he or she has gone through and how intense the pain was and how long the pain lasted. 

It can also be helpful to bring in lay witnesses who can testify as to what the plaintiff’s condition was before the injury and then what the plaintiff’s condition was after the injury.  That is a good way to give the jury a picture of what the plaintiff has been through.

Loss of Income

Another component of damages are lost wages.  In order to prove lost wages you should have a report from a doctor confirming that there was a period of time when you were not able to work.  You then need to be able to prove what the actual wage rate was that applied during that period of time.  That normally is proven through a letter from the employer. 

Sometimes loss of income can be difficult to prove where a person is self-employed.  Any of you who have ever been self-employed know that your hours may be irregular and there may not be any set period of time when you work.  As such, even though you may not have been able to work between 9 and 5 on a particular day you may have made up that work time on another day.  Insurance companies are certainly aware of that. Frequently the best way to prove an actual wage loss for a self-employed person is to show the differential that occurred from one month to the next or if income tends to be seasonal then to show what the income had been during that same month the year before.  The differential then may be evidence of what the wage loss is.       

Our Senses Are Wonderful Things and Must Be Treasured

We take for granted the five senses that allow us to make our way through life.  Any injury to these senses may be categorized as a catastrophic injury.Sight may be the dearest of those senses although that is subject to question.  Many people do not appreciate the sensitivity of the human eye.  It can actually spot the light of a candle 14 miles away.  When your visual perception is described as being 20/20 what that means is that you can clearly see an image such as the letters on an eye chart from a distance of 20 feet.  On the other hand, having vision that is 20/100 means that  you need to be five times closer in order to see those same letters.

Color blindness is something that principally effects men.  Ten times as many men are color blind as are women.  All babies are born color blind at birth and acquire that ability to perceive colors as they mature.

People who have lost the ability to hear maintain that the loss of that hearing is more profound than the loss of any other sense, even the loss of sight.  The reason for that may well be that we communicate our emotions through our voice.  The inability to communicate those emotions is a tremendous human loss.

Noise

The word “noise” itself comes from the same root as nausea which means sickness.  As such, noise indeed can cause nausea.  It can also cause an increase in blood pressure.

Oddly enough even small amounts of noise actually effect the human pupil in the eye.  Any noise causes the pupil to increase in size, i.e. to dilate, thereby allowing more light to come into the eye.  This excess of light impacts visual acuity.  When you are doing something that requires close visual attention it is probably best to do it in a quiet environment. 

Noise, however, does serve many purposes.  One of those purposes is teaching children how to speak.  The vast majority of a child’s knowledge of language is acquired simply through background conversation, i.e. hearing other people speak even though they are not actually speaking at the child. 

Our sense of taste is focused around taste buds of which there are approximately 10,000 that are spread over the tongue, palate and inner cheek.  These taste buds are the primary defense against poison.  As we get older, these taste buds do die off and their ability to regenerate is not the same as for a young person.  As a result, the elderly tend to have less sensitivity to taste than do younger people. 

Touch and Smell

The sense of touch is based not only on physical contact but it is also based on near contact.  The nerves that are known as the proprioceptors are those nerves that allow us to gauge exactly where our body parts are.  It is these nerves that allow us to scratch the back of our head and to know where our left leg is even though we may not be able to see it. 

The most sensitive parts of the body are the lips, the back of the neck, the fingertips and the soles of the feet.  The least sensitive is the middle of the back.

The sense of smell is a sense that can be lost through an impact to the brain.  This sense oddly enough has a rather keen “memory” in that the human brain can, with a high degree of accuracy, recall smells that it has experienced even in years past. 

Catastrophic Injuries

Catastrophic injuries require special attention. Catastrophic injuries might be defined as ones involving total and permanent disability, the total loss of earning capacity,enormous past and future medical expenses, custodial expenses, and pain and suffering. Theses types of cases take a staggering toll on the victim. The predicate of proving the case is medical testimony establishing the permanency and the totality of the injury and the need for lifetime medical care. It is the medical testimony likewise that establishes the foundation for future rehabilitation, the need for structural modifications to the home, and the need for personal care attendants.

The role of the economist is to affirm what those costs are in terms of present value both as to medical care and loss of income.

In large measure those determinations are based upon the work life expectancy and/or the life expectancy of the Plaintiff which are governed by either state mandated tables or publications from the U.S. Government.

Loss of Services

Another component of these damages are what is typically called loss of services, i.e., the loss of services of a wife or a husband as a homemaker or attendant at home. The value of that frequently is difficult to pinpoint. That again is the role of the economist.

During the voir dire process it is critical that members of the potential jury pool be identified who might be unwilling to award an amount of money that is commensurate with what is called for based upon the evidence and the instructions of the Court.

Emotional Damages of Children

Emotional damages to children are frequently difficult to prove but may be compelling.  This may be especially important in instances where the child is not the direct victim of the injury but rather is a witness to a horrific injury to a loved one.  The general rule in most jurisdictions in terms of allowing a child or any party to recover for those types of damages is based upon nearness to the injury scene, nowness in the sense of the person’s reaction being immediate and finally closeness to the actual victim. 

Children tend to be less verbally communicative about their emotions than most adults.  However, children do tend to act out events.  It is this acting out that can provide a significant insight into the emotional or psychological impact of the event.  This is something that the appropriate health care professional can probably draw out of the child. 

School Records

In addition, obtaining school records may be critical.  Overall school performance may be an indice of the effect of the injury and likewise observed performance within the classroom by the teacher may provide compelling evidence.  If the child has been seen by a guidance counselor or speech therapist at school or outside of school then that type of evidence may likewise be dramatic. 

Proving Damages Through Biomechanical Engineers

Biomechanical engineers can be of great assistance in certain types of injury claims. Such an engineer is able to analyze the nature and extent of physical forces that are imposed on the body and explain how that can result in serious injury. Although they typically are  not used as accident reconstruction experts they can indirectly be used for that purpose as they suppose that collision occurred in certain fashion based upon evidence presented.

In terms of trying to find biomechanical engineers, excellent places to look are academic centers and  by reviewing professional and scientific journals.These professional journals not only will bring you current as to ideas these professionals are bouncing around among themselves but also will help to identify those people in the profession who are at the forefront and might be receptive to assisting with your case.Finding an expert in this fashion also avoids the taint of using a search service for this purpose.

One of the early cases on the admissibility of this type of testimony is Mannino v. International Manufacturing 650 F.2d 846 (6thCir. 1981) which addressed a number of evidentiary issues as to biomechanical engineers and in that particular case held such testimony was admissible.

See the highlighted pages for a review of Virginia case law on admissibility of expert testimony and the qualifications of experts.

Golden Rule Argument

The Golden Rule encourages that we treat others as we would want to be treated.  That rule however has little application in the courtroom.

The traditional rule across the country has been that counsel may not argue to the jury that they should do unto others as they would want others to do unto them.  That restriction has been applied mostly to the area of damages.  In particular, argument to the jury that they should award an amount that the jurors themselves would want awarded to them is not appropriate.  The standard instead is that the jury should apply the reasonable man standard and ask what the reasonable person or man would do in that circumstance.

Court Says Golden Rule Argument Inappropriate

In a case reported by the U.S. Court of Appeals for the DC Circuit, Caudle v. District of Columbia 707 F.3d 354 (D.C. Cir. 2013) the Court noted that where that argument is applied to liability, it is likewise inappropriate.  In this particular instance, Plaintiff”s counsel argued that the jury should ask themselves whether or not they would hesitate to speak up against their boss in this retaliatory discrimination case.  Likewise the Plaintiff’s counsel asked the jury whether or not they themselves would think twice about complaining about workplace discrimination and further asked the jury to put themselves in the Plaintiff”s shoes. 

Golden Rule as to Liability

Although some of the U.S. Circuits have held that the Golden Rule argument is appropriate where it applies only to liability, this court disagreed.  The court in this case said that the Golden Rule argument is improper regardless of whether it relates to liability or damages and awarded a new trial.

Also in this case the attorney for the Plaintiff asked the jury to send a message.  Although that technically is not part of the Golden Rule argument, it likewise is deemed inappropriate.  The court’s general instruction that the jury should put aside matters of prejudice, sympathy and fear was insufficient to overrule the bias created by this argument.

See injuries to minors also on this site. 

For more information on this issue, see the other pages on this site and also see the pages on Wikipedia.

Contact Us For A Free Consultation

Contact Us For A Free Consultation