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Proving Damages

Fairfax Injury Lawyer Brien Roche Addresses Proving Damages

Brien Roche

Proving damages can always be a 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 precise amount to the jury.  Likewise the amount that is asked for in the suit papers can be disclosed to the jury.  Most of the time it is a good idea for the plaintiff, through counsel, to disclose to the jury what it is the plaintiff is asking for.  That amount should be as precise as possible.  Under the Wakole decision from the Virginia Supreme Court, the plaintiff is now allowed to break down into different categories the amount being requested.  That type of certainty provides some degree of guidance to a jury. Call, or contact us for a free consult.

Proving Damages Through Anchoring

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

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

Talking Money

It is important to begin the money discussion with the jury early in the case. This should begin either while picking the jury 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 faced with money decisions there are a number of studies that show that they tend to become more tight fisted.  Even though a jury is not awarding money out of their pocket, it’s amazing that jurors tend to be tight in awarding one person’s money to another person.

During the voir dire process it is critical that members of the jury pool be identified who might be unwilling to award a large amount of money.

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

Proving Damages-Personal Injury

Within the world of 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 physical injury may in turn cause certain emotional or non-tangible injuries consisting of embarrassment or humiliation associated with the injury and pain and suffering. 

Proving Damages-Pain and Suffering

Pain and suffering can be a large component of a personal injury claim.  The pain and suffering must be explained and detailed through testimony from the plaintiff, the treating physician and lay witnesses in order to make it real.  The way that pain and suffering are made real is through live testimony. This must explain what it is that the plaintiff 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. They can testify as to what the plaintiff’s condition was before the injury. This is then compared with the plaintiff’s condition after the injury.  That is a good way to give the jury a picture of what the plaintiff has been through. Call, or contact us for a free consult.

Proving Damages-Loss of Income

Another component of damages are lost wages.  In order to prove lost wages you should have a report from a doctor. The report should state 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. That normally is proven through a letter from the employer. 

Sometimes loss of income can be tough to prove where a person is self-employed.  Any of you who have ever been self-employed know that your hours may be irregular. 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 aware of that. The best way to prove an actual wage loss for a self-employed person is to show the change that occurred from one month to the next. However if income tends to be seasonal then show what the income had been during that same month the year before.  The change  then may be evidence of what the income 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 described as a catastrophic injury.Sight may be the dearest of those senses although that is subject to question.  Many people do not realize how sensitive the human eye is.  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 their hearing maintain that the loss of 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 convey our emotions through our voice.  The inability to communicate those emotions is a huge 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 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. 

However noise 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 talk i.e. hearing other people speak even though they are not speaking at the child. 

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. They allow us 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”. The human brain can, with a high degree of accuracy, recall smells that it has experienced even in years past. 

Our sense of taste is focused around taste buds of which there are approximately 10,000. They 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 die off. They are not replaced as quickly or as well as is done with a young person.  As a result, older people tend to have less sensitivity to taste than do younger people.  Call, or contact us for a free consult.

Understanding these senses is a must in order to prove damage to the senses.

Proving Damages-Catastrophic Injuries

Catastrophic injuries require special attention. These injuries might be defined as ones involving total and permanent disability. They may involve total loss of earning capacity, huge past and future medical expenses, custodial expenses, and pain and suffering. These types of cases take a toll on the victim. To prove this type of injury you need medical proof of the permanency and totality of the injury. You need to also prove the need for lifetime medical care. It is the medical testimony that lays the basis for future rehab, the need to modify 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. This applies both as to medical care and loss of income.

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

Proving Damages-Loss of Services

Another component of these damages are what is typically called loss of services. The loss of services of a wife or husband as a homemaker or attendant has value. That value may be tough to pin down. That again is the role of the economist.

Emotional Damages of Children

Emotional damages to children can be tough to prove but may be compelling.  This may be very important in cases where the child is not the direct victim but rather is a witness to a horrific injury to a loved one.  Whether these damages can be recovered 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 verbal about their emotions than most adults.  However, children do tend to act out events.  It is this acting out that can provide a good insight into the emotions caused by the event.  This is something that the right health care professional can probably draw out of the child. 

School Records

In addition, obtaining school records may be helpful.   How the child performs in school may be an indice of the effect of the injury. Performance within the classroom as seen 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 that type of evidence may likewise be dramatic.  Call, or contact us for a free consult.

Proving Damages Through Biomechanical Engineers

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

In terms of trying to find these types of engineers, excellent places to look are academic centers. Reviewing professional and scientific journals may also provide leads. In addition these professional journals will bring you current as to ideas these professionals are bouncing around. 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 issues as to biomechanical engineers and in that 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 allowed.  The standard instead is that the jury should apply the reasonable man standard. They should ask what the reasonable person would do in that case.

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 the golden rule argument is not allowed as to liability. In this case Plaintiff’s counsel argued that the jury should ask themselves whether they would hesitate to speak up against their boss. Likewise Plaintiff’s counsel asked the jury whether or not they themselves would think twice about complaining about workplace discrimination. Counsel further asked the jury to put themselves in the Plaintiff’s shoes. 

Golden Rule as to Liability

Although some U.S. Circuits have held that the Golden Rule argument is allowed as to liability only, this court disagreed.  The court said that the Golden Rule argument is not allowed as 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 is not part of the Golden Rule argument, it likewise is not allowed. The court’s general instruction to the jury tells them to put aside matters of prejudice, sympathy and fear.

Call, or contact us for a free consult. See injuries to minors also on this site. 

For more information on this issue, see the other pages on this site. For information on lost profit claims see that page. 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 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 precise amount to the jury.  Likewise the amount that is asked for in the suit papers can be disclosed to the jury.  Most of the time it is a good idea for the plaintiff, through counsel, to disclose to the jury what it is the plaintiff is asking for.  That amount should be as precise as possible.  Under the Wakole decision from the Virginia Supreme Court, the plaintiff is now allowed to break down into different categories the amount being requested.  That type of certainty provides some degree of guidance to a jury. Call, or contact us for a free consult.

Proving Damages Through Anchoring

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

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

Talking Money

It is important to begin the money discussion with the jury early in the case. This should begin either while picking the jury 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 faced with money decisions there are a number of studies that show that they tend to become more tight fisted.  Even though a jury is not awarding money out of their pocket, it’s amazing that jurors tend to be tight in awarding one person’s money to another person.

During the voir dire process it is critical that members of the jury pool be identified who might be unwilling to award a large amount of money.

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

Proving Damages-Personal Injury

Within the world of 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 physical injury may in turn cause certain emotional or non-tangible injuries consisting of embarrassment or humiliation associated with the injury and pain and suffering. 

Proving Damages-Pain and Suffering

Pain and suffering can be a large component of a personal injury claim.  The pain and suffering must be explained and detailed through testimony from the plaintiff, the treating physician and lay witnesses in order to make it real.  The way that pain and suffering are made real is through live testimony. This must explain what it is that the plaintiff 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. They can testify as to what the plaintiff’s condition was before the injury. This is then compared with the plaintiff’s condition after the injury.  That is a good way to give the jury a picture of what the plaintiff has been through. Call, or contact us for a free consult.

Proving Damages-Loss of Income

Another component of damages are lost wages.  In order to prove lost wages you should have a report from a doctor. The report should state 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. That normally is proven through a letter from the employer. 

Sometimes loss of income can be tough to prove where a person is self-employed.  Any of you who have ever been self-employed know that your hours may be irregular. 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 aware of that. The best way to prove an actual wage loss for a self-employed person is to show the change that occurred from one month to the next. However if income tends to be seasonal then show what the income had been during that same month the year before.  The change  then may be evidence of what the income 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 described as a catastrophic injury.Sight may be the dearest of those senses although that is subject to question.  Many people do not realize how sensitive the human eye is.  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 their hearing maintain that the loss of 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 convey our emotions through our voice.  The inability to communicate those emotions is a huge 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 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. 

However noise 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 talk i.e. hearing other people speak even though they are not speaking at the child. 

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. They allow us 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”. The human brain can, with a high degree of accuracy, recall smells that it has experienced even in years past. 

Our sense of taste is focused around taste buds of which there are approximately 10,000. They 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 die off. They are not replaced as quickly or as well as is done with a young person.  As a result, older people tend to have less sensitivity to taste than do younger people.  Call, or contact us for a free consult.

Understanding these senses is a must in order to prove damage to the senses.

Proving Damages-Catastrophic Injuries

Catastrophic injuries require special attention. These injuries might be defined as ones involving total and permanent disability. They may involve total loss of earning capacity, huge past and future medical expenses, custodial expenses, and pain and suffering. These types of cases take a toll on the victim. To prove this type of injury you need medical proof of the permanency and totality of the injury. You need to also prove the need for lifetime medical care. It is the medical testimony that lays the basis for future rehab, the need to modify 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. This applies both as to medical care and loss of income.

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

Proving Damages-Loss of Services

Another component of these damages are what is typically called loss of services. The loss of services of a wife or husband as a homemaker or attendant has value. That value may be tough to pin down. That again is the role of the economist.

Emotional Damages of Children

Emotional damages to children can be tough to prove but may be compelling.  This may be very important in cases where the child is not the direct victim but rather is a witness to a horrific injury to a loved one.  Whether these damages can be recovered 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 verbal about their emotions than most adults.  However, children do tend to act out events.  It is this acting out that can provide a good insight into the emotions caused by the event.  This is something that the right health care professional can probably draw out of the child. 

School Records

In addition, obtaining school records may be helpful.   How the child performs in school may be an indice of the effect of the injury. Performance within the classroom as seen 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 that type of evidence may likewise be dramatic.  Call, or contact us for a free consult.

Proving Damages Through Biomechanical Engineers

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

In terms of trying to find these types of engineers, excellent places to look are academic centers. Reviewing professional and scientific journals may also provide leads. In addition these professional journals will bring you current as to ideas these professionals are bouncing around. 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 issues as to biomechanical engineers and in that 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 allowed.  The standard instead is that the jury should apply the reasonable man standard. They should ask what the reasonable person would do in that case.

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 the golden rule argument is not allowed as to liability. In this case Plaintiff’s counsel argued that the jury should ask themselves whether they would hesitate to speak up against their boss. Likewise Plaintiff’s counsel asked the jury whether or not they themselves would think twice about complaining about workplace discrimination. Counsel further asked the jury to put themselves in the Plaintiff’s shoes. 

Golden Rule as to Liability

Although some U.S. Circuits have held that the Golden Rule argument is allowed as to liability only, this court disagreed.  The court said that the Golden Rule argument is not allowed as 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 is not part of the Golden Rule argument, it likewise is not allowed. The court’s general instruction to the jury tells them to put aside matters of prejudice, sympathy and fear.

Call, or contact us for a free consult. See injuries to minors also on this site. 

For more information on this issue, see the other pages on this site. For information on lost profit claims see that page. Also see the pages on Wikipedia.

Contact Us For A Free Consultation

Contact Us For A Free Consultation