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February 5, 2016
There is little disagreement among attorneys that arguing damages is one of the most sensitive and delicate elements of the entire trial process. However, to maximize the damages of a case based on solid evidence and supporting testimony, there are a number of ways both in preparing for trial and during trial to reach that desired outcome. These were discussed at a recent Connecticut Trial Lawyers (CTLA) seminar on “Arguing Damages – Maximizing the Verdict” that was co-chaired by Richard A. Silver, Senior Partner of Silver Golub & Teitell LLP, and that also featured partner Peter M. Dreyer.
“This seminar specifically discussed some of the best practices for building a plaintiff’s case for both economic and non-economic damages and then asking the jury – specifically and directly – for the damages the plaintiff is seeking,” said Mr. Silver. “It is vitally important that the jury is presented point by point with the rationale behind both tangible claims and less tangible pain and suffering claims.”
Trial lawyers need to give the jury a blueprint for determining damages; otherwise it might fail to see how the damages have been calculated and then deliver a less-than-satisfactory outcome. The seminar covered a wide range of topics that addressed that issue, including such pre-trial strategies and tactics as the utilization of focus groups and the correlation between the damage evaluation of focus groups and actual outcomes; and understanding the most common errors made in the final argument. Also discussed were such courtroom strategies as the use of demonstrative exhibits in damage arguments and the use of experts to evaluate the loss of employment damages.
The seminar also looked at specific types of cases, such as low impact cases with significant damages, low impact back or neck injury cases without significant physical damage, classic concussion without brain damage on MRI and the best way to present PTSD/emotional damages to the jury.
Other issues that were covered during the discussion, Q&A and roundtable included:
- Describing loss: Loss of function v. percentage disability
- Giving the jury final demand number in final argument: At all? First part? Last part of argument?
- Length of time for utilization for damage argument in opening
- Key into judge’s charge
- Utilization of care provider for long-term damages
- Long-term loss of employment/how do you demonstrate?
- Effective argument of long-term disability
Other participants in the CTLA seminar included: Brian M. Flood (co-chairperson), The Flood Law Firm, LLC; Pamela L. Cameron, Moore O'Brien & Foti; John J. Kennedy, Kennedy, Johnson, Schwab & Roberge, LLC; and Sean K. McElligott, Koskoff Koskoff & Bieder, PC.
An audio CD and PDF of the complete seminar are available from the CTLA. Please click here for more information.