How can we best explain and then remind jurors that this trial is the one and only opportunity each of our clients will have to recover for losses that have yet to arise? At a time in American history when millions of people are barely coping with the day-to-day hardships involving unemployment, illness, an aging population and a system of higher education that is becoming less and less accessible to the middle class, how and why should jurors award money to someone else; the greatest challenge in a courtroom today is generating appropriate empathy for plaintiffs.
Make It Come Alive
Very often, lawyers behave somewhat apologetic in the presentation of damage evidence . That does not help. The direct exam of each damage witness should incorporate the various techniques of persuasion. Begin your examination with a strong point and end with another strong point. Areas that must be covered during the examination but have little dramatic or emotional impact should be sandwiched between the opening and closing points. Use "foreshadowing" when changing from one topic to another during the examination. As an example, you can begin questioning by stating: “Mrs. Coben, I’d like to talk with you about what life was like at home during the first few weeks after John came home from rehab”. “Foreshadowing” signals to the witness and the jury what area you are about to cover. Draw the jury into the examination by making it as interactive as possible. Get witnesses off the witness stand and down in front of the jury with charts, photos, and other exhibits. Often, a physiatrist or life care planner will provide significant testimony concerning the client’s struggles with independence and the need for home attendant care. Integrate into this testimony a narrative of the day-in-the-life film, photographs of the client’s home and the client participating in daily activities. You should even consider, if it can be done tastefully, having a medically related witness demonstrate some of the client’s medical or functional issues by placing the client in front of the jury box to demonstrate facets of his or her disability.
Every jurisdiction allows the jury to award sums of money for "pain and suffering", disability and disfigurement. In most jurisdictions, victims may also recover for the loss of life’s pleasures. While some states allow "economic evidence" of the value of these hedonic damages, and ask the jury to award a specific amount of money for these losses, counsel should seriously consider the necessity or logic of making a specific monetary request when evidence of other financial losses — usually involving several million dollars — has already been presented for medical and job related losses. Perhaps the better approach is to apply the adage that a picture is worth a thousand words. With the use of a day-in-the-life film and, an appropriate, but brief court appearance by your client, you can make a much greater impact than by insulting the jury’s intelligence in presuming they cannot fairly address this damage claim.
Economic Projections of Future Losses.
The economic factors affecting medical costs and wages are primarily inflation and productivity growth. Inflation is the rise in the general level of prices. Generally, increases in wages and the cost of medical care follow price rises.[i] Because wages tend to rise due to inflation, an award that ignores inflation is under-estimated. Productivity growth is different than inflation. The labor productivity rate is the ratio of output to units of labor input. Productivity increases are the source of real wage increases. When workers become more productive, their services are worth more and a rise in pay typically results.[ii] Because productivity-based increases in wages and medical costs are historically grounded, the estimate of costs and services and loss of earnings must account for real wage gains.[iii]
For decades, many economists have applied what is known as the “total offset” method to calculate the present value of future lost earnings/earnings capacity. This approach holds earnings and fringe benefits constant over time with no increase for either inflation (but allows for real wage growth) and ignores the use of a discount rate. This Atotal offset@ method has several logical advantages. First, a real (positive) discount factor could be applied only if there is reason to believe that the real rate of interest or discount will exceed real rates of wage growth over the work life or life expectancy. Accurately predicting the real wage growth increases that will occur over time is impossible. Equally impossible is accurately predicting over time the real rate of interest or return on a safe and secure investment. One author has pointed out that the discount method takes into account the return as a percent of the face value of a T-bill, rather than its purchase price. This means that the discount method understates yields whenever the face value exceeds the purchase priceCwhich is virtually always true.[iv] Long term interrelationship between wage growth and interest or discount show no consistent trend.[v] Depending on the historical time period studied, the relationship could call for a net growth rate in some years and a net discount in others. If, instead, one uses a pure offset method, where discount rates offset inflation, then you remove the uncertainty and as a byproduct you acknowledge the inability to predict average future rates of real wage growth and real interest. The total offset method is not driven by forecasts of future earnings or interest rates, but instead it assumes that whatever the future level of interest rate, the growth rate of earnings and the interest rate will remain sufficiently close to cancel out each other.[i]
In civil litigation, an attorney’s representation of a catastrophically injured victim remains a challenge with awesome overtones. A loss may necessitate the permanent "warehousing" of your client in a dismal State institution. A win, on the other hand, provides your client with some financial security and, hopefully, a distinct improvement in his or her quality of life. Acceptance of the representation of the victims of individual or corporate neglect must, therefore, only occur when counsel is fully prepared to engage and defeat the formidable cauldron of the upper echelon of the defense bar, who are usually supported by the endless financial resources of industry.
[i]. The total offset method does account for discounting and any argument to the contrary is based on ignorance. Further, this method has been fully explained in the economic literature and is an accepted method of discounting. Pelaez, R., Calculating Awards For Lost Earnings: An Empirical Assessment Of Beaulieu, 5 Sum. J. Legal Econ. 49 (1995).
[i]. L. Reynolds, Labor Economics and Labor Relations, 225 (6th ed. 1974).
[ii]. P. Samuelson, Economics, 740 (10th ed. 1976).
[iii]. Gibson, Interest Rates and Inflationary Expectations: New Evidence, 62 Am. Soc. Econ. Rev. 854 (1972).
[iv]. Fjeldsted, B., A NonTrivial (Though Seemingly Not Uncommon) Error In Calculating The Discount Rate Used To Reduce Future Losses To Present Value, 10 SUM J. Legal Econ. 73 (2000).
[v]. Lawlis and Male, Methodological Issues: Interest Rate and Wage Growth Forecasting, 4 WTR J. Legal Econ. 55 (1994).
For more than 40 years, Larry Coben has been going up against companies whose defective products have hurt and killed unsuspecting people. Larry, of Anapol Weiss, is admitted to practice in Pennsylvania and Arizona as well as in Federal District Court, before the U.S. Supreme Court and in the majority of the Federal Courts of Appeals.