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How to empower a jury to fully compensate your client for their non-economic damages


By S.J. Walker


            Last week, this blog discussed the tactics used to sell general damages to a jury. However, for a San Diego Personal Injury Attorney or elsewhere in the world, the hardest damages to prove are usually those that are non-economic. Juries are easy to lean toward economic damages. Why? There is objective proof as to what they are: medical bills, lost wages, or loss profits. On the contrary, juries are more reluctant to award a non-economic judgement. Why? It is subjective; maybe they think “its too much money for one person”; or maybe they know that awarding non-economic damages will not bring a person back. Whatever the reason, it is your job as a San Diego Personal Injury Attorney, a Wrong-full Death attorney, Consumer Protection Attorney, and the like, that you motivate the jury to give fair economic damages. This starts as early as the voir dire and ends with the closing arguments.


Voir Dire: Find the Leaders and Make Sure They’re on Your Side:


            The Voir Dire is your chance to talk to the jurors. But not just talk, you should listen. Just as you want your witness to testify to their own story; you want a potential juror to tell their own story. Go beyond the simple “yes” and “no” questions. You are looking for potential leaders in the jury, and if you find a leader, a personal injury attorney wants to ensure that that leader is on their side.

            First, start by making the jurors comfortable. Tell them that everyone has prejudices, and many of us get them from different places. Tell them that they owe you nothing with the exception of honesty. Once you get them comfortable, they will talk more, allowing you more insight on who you’re going to want on the jury, especially if you’re dealing with non-economic damages (which you likely are).

            Second, ask open-ended questions. There will be jurors who believe in tort-reform and believe that economic damages should be capped or altogether eliminated. There will be other jurors who simply have difficulty awarding non-economic damages. Look for these. Ask questions such as “What do you think of our justice system allowing for compensation for pain and suffering or loss of a loved one? Do you like that idea? Why?” This will get the jurors talking and you listening. When you listen, those you don’t want on your jury will likely come into the light.

            Thirdly, jurors are to make a verdict. There are certain things they can consider and certain things they may not consider. Getting these two differences ingrained in their minds early will help throughout the case and will assist you in your closing argument.


Opening Statement: Motivate The Jury for Non-Economic Damages


            Begin your case with a bang. A story will become a long-lasting memory with the jury if it is told good enough. So, tell your client’s story, and tell it well. I do not recommend starting off your opening statement by reminding the jury that an opening statement is not evidence. This invites them to tune out what you are saying. Set the scene, set the story, make the character’s, and drive it home that your client deserves the fair and just damages that the jury finds. However, there is a balance to be had here; don’t overstate your case, and don’t understate it either. Be up front, frank, and organized with telling your story so the jury can follow and remember.

            Furthermore, set up the theory for your case. It is easy enough to simply tell a story, but it is hard to succinctly tell the jury what your case is about. For example, tell them there is a difference between taking responsibility and taking full responsibility. “This case is about taking full responsibility.” That extra word, full, provides the filler for the non-economic damages.

            Also, part of a good story has a level of magnitude to it. Discuss the magnitude of your client’s damages: the impact on the family; the loss of enjoyment in their everyday life; the impact a loss of a loved one has had on a child. These will help to motivate the jury to compensate for the non-economic damages that have occurred.


Witnesses, Photos, “day in the life” Videos:  


            Let the witness tell their story. I know I said this in our last blog, but it is very important. During discovery, identify the witnesses that will help corroborate your witness’s non-economic damages. Find a parent, friend, a sibling, a co-worker, a cousin, anyone who will tell a story that will impact the jury in your clients favor. I advise, again, to place the plaintiff on the stand last if possible, because then it will lessen the effect on the jury that your client is over-exaggerating or simply whiney. Interview each witness first so you use only the best witnesses that will tell a before and after story of how the accident has impacted your client’s life.

            Photographs are also very powerful in providing proof for non-economic damages. During discovery, identify the best photos you can find to put your client’s loss into perspectives. Show pictures of them where they were happy at a wedding, vacation, birthday party, etc. Then contrast that with explaining how your client’s life has been devastated. A picture tells a thousand words, so use them.

            Sometimes your case will allow for “day in the life videos.” These can come in different forms. They can be family home videos, or videos of the current suffering your client is going through. Make the video short, you don’t want to over-do-it. These videos will help the jury visualize the extent of the damages done.



Closing Argument: Fair and Equal to the Harm Suffered:


            From Voir Dire, you should have established with the jury that they must award damages that are fair and equal to the harm suffered by your client. Before they award the damages, remind them that they must first determine the amount of harm the client has suffered in the past, and will continue to suffer in the future. Tell them that while the award should not exceed the damages and it should not be less than the damages either. Don’t be afraid to mention the fact that you are asking for a lot of money; this will help the jury to humanize you and your client. Remind them that the reason you are asking so much is because your client’s injuries are so catastrophic that the award must be equal to match that harm.

            During this time, it is your job to remind the jury of what you discussed during Voir Dire. This specifically includes what they can and cannot consider. They can consider jury instructions. Break each one of the elements in a jury instruction down to emphasize the harm had by your client.

            Next, remind the jury of what they cannot consider. Slow down and take your time on this element of your closing argument. This is your opportunity to diffuse or eliminate the main reasons juries are reluctant to provide non-economic damages. Many juries will wonder “who is going to pay for these damages? How are they going to be paid? Etc.” Address these questions and worries. Explain it to them that allowing these factors take place in the deliberations will result in a dishonest verdict. Be aware that it is likely that the defense is going to go for a jury instruction that advises the jury not to allow “sympathy” to influence your opinion. (CACI 500). Tell them sympathy is not what you are looking for but rather a fair damage award that equals and matches the harm, and not a penny more.




            Thus, taking some of these steps will likely help get your client non-economic damages. There are those that are unbending on tort-reform and wish that non-economic damages be capped or eliminated altogether. However, non-economic damages allow for what damages were met to do all along; they allow for compensation that is equal and matches the harm done to your client. Although it may be impossible to measure non-economic damages with 100% accuracy, doesn’t providing them bring us a little closer to equalizing the compensation to the harm?


For a more detailed instruction on non-economic damages, see: Ricardo Echeverria, The Advocate Magazine, 52-60, (January 2017).



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