Damages: Strategies for Turning an Ordinary Case into an Extraordinary Case
June 30, 1997 | By: Roger G. Oatley
This article presents an overview of strategies for turning an ordinary damages case into an extraordinary one.
There are some cases which even David Copperfield couldn’t turn into an extraordinary case. As I explain later, they are not necessarily cases where the plaintiff has a terrible pre-morbid history, and they are not necessarily cases where liability is difficult. They are the cases where because the potential plaintiff is difficult to like and hard to believe it will be next to impossible for a judge or jury to feel good about making a generous award. Even if you are a magician your odds are so poor with a case of this kind that you might consider leaving it alone or, if you do take it on, making sure you settle before trial.
The most important strategy in turning an ordinary case into an extraordinary one is the early development of a powerful case theme. A great case theme will be the magic carpet on which your case will soar.
What makes a case theme powerful is these qualities:
It puts the case into a favourable perspective;
It appeals to shared values; and
It makes the case bigger than the contest between the parties.
A great way to get the feel for case themes is to read the newspaper. Journalists create case themes when they write good headlines. Politicians use case themes when they put a spin on events For example, a good headline might read: “Parizeau plan throws Bloc campaign into free fall”. A politician might say: “Iraq’s land grab is a threat to freedom-loving people everywhere”. Brian Tobin, when federal Fisheries minister, branded the Americans as “pirates of the North”. These examples illustrate how through the use of emotive summaries, case themes create a focus, develop a perspective, and appeal to shared values to persuasive effect.
Let me give you just one example of what I mean and then I will leave the rest to your imagaination. The example is an ordinary, garden variety, run of the mill whiplash case ö a “whipper”. You can’t get much more ordinary than that. How about this for a case theme to make this case extraordinary:
This is a case about how a reckless man who was too drunk to know he was on the wrong side of the road wrecked a young life; about how a drunk shattered the dreams of an healthy, dynamic, innocent young woman and turned them into an endless nightmare of pain.
Here is another case theme I used to advantage which illustrates this strategy:
Del Houle is now 63. He was 58 when he was stopped waiting to make a left hand turn, and when he was struck violently, suddenly and needlessly from the rear by a transport trailer. His aging but reliable dump truck was ruined, and so were their lives.
Put Your Faith in Juries
I recommend that you put your faith in juries if you want to turn an ordinary damages case into an extraordinary one, for a host of reasons, none of which have anything to do with the quality of our judges. First of all, because judges often become numbed to suffering, it can be much more challenging or even impossible to lift a case out of some ordinary category into which we lawyers would put it. Next, it is much more difficult to speak to judges about case themes than it is to juries. Also, if your case is before a jury the odds are greater that the judge will feel constrained to allow you full scope to present all the evidence you need and in your own way. Finally, a jury is more likely to respond to compelling liability evidence than is a judge. Having said that you should put your faith in juries, all of the strategies in this article are effective, with appropriate modification, before judges.
Craft Jury Openings and Closings Which Empower the Jury and Tie the Case Together Through the Case Theme
If I had to choose only two things from all the things I usually say to a jury in opening and closing it would be empowerment and theme.
To empower a jury is to make it aware that the jury and the jury alone has the power to award fair compensation; that no one else can right the wrong, not even the judge. Attached as an appendix to this article is a reprint of the opening and closing in a fatality case which I tried within the last year. It was a difficult case. My client and her fiancé had been drinking at a tavern and after their car slid into the ditch they went walking for help on a dark country road. My client, the plaintiff, dropped her engagement ring and while she and her fiancé were searching for it the plaintiff came along the road in her car and struck and killed the fiancé. Because there was some evidence that the deceased fiancé had been standing on the travelled portion of the road there was a strong case for substantial contributory negligence. Also, because my client was young and attractive there was a good argument that she might mitigate her damages by finding another mate.
When you read the openings and closings consider how the case theme might influence the result. I was able to develop evidence that the defendant had a drink just before she left the same tavern. The tavern was hosting a country hoedown that night, and the evidence was that the defendant intended a quick trip home to pick up her cowboy hat. I am sure that by empowering the jury in relation to the following case theme that the opening and closing had a major impact on the result:
This case is a story of human loss, tragedy and sorrow. Needless loss, needless tragedy and needless sorrow at the hands of an impaired driver. The proceedings in this court room are an opportunity for us and for the justice system to confirm the value of human life in our community.
The jury’s verdict on damages was very generous to my client. In fact it awarded almost everything we asked for. Furthermore, despite my fears, the jury found only 10% contributory negligence. I believe the jury’s verdict is evidence that it bought into the case theme.
Allow Liability to Drive Damages
Take advantage of compelling liability evidence to drive the damages. When you think about it, we are offended by outrageous acts and when we are offended we want to do something about it. When a jury or a judge is outraged by powerful liability evidence the unconscious tendency will be toward generosity in damages. It is only human nature.
This is the reason why good defence counsel make every attempt to admit liability in return for an agreement to limit the claim to the policy limits, in the hope that the judge will rule liability evidence to be inadmissible. How can you lead evidence that the defendant was three times over the legal limit going the wrong way on the 400 highway when liability has been admitted? I am not suggesting that claims in excess of policy limits be made frivolously, but I am suggesting that if there is a chance of an award over the limits that plaintiffs should keep good liability facts before the court by keeping liability alive.
In a recent case that I tried before a jury my client was injured when a 20,000 pound cargo container slid off the back of a transport truck into my client’s car. There really was no liability issue as far as the trucker was concerned, but the damages issues were very challenging. I was able to rely on admissions obtained on discovery to sum up liability in the following case theme, which I hoped would compel the jury to be generous in its regard to my client and his damages:
This is a case about an innocent, hardworking, family man who was driving down the 400 with his family when a 15 ton freight container slid off the back of a truck and slammed into his car because of carelessness and haste. It’s about how an unsafe truck on our highways destroyed Jeff Poirier’s care, destroyed his life and turned his dreams into a nightmare. And it’s about how the driver of the truck, the corporation which owns the truck and the railway which loaded the container all say it was somebody else’s fault and how not one of them has admitted responsibility to this innocent man for hurting him. I am certain that there was a sense of outrage in the jury box even before I called the first witness and I am confident that if the case had not settled that outrage would have driven the damages in my client’s favour. I am just as certain that placing this emphasis on liability and framing it in this fashion led to the very favourable settlement concerning damages which brought the trial to an end.
Show the Jury Compelling Liability Evidence
Never miss an opportunity to show both a judge and a jury dramatic photographs of vehicle damage, because most people expect serious injury to follow serious property damage. The photographs which form an appendix to this article record serious property damage where the plaintiff suffered relatively minor soft tissue injuries. To experience the impact, take a look at each photograph and ask yourself, “How did the occupant survive this crash? Could the occupant possibly survive this crash without serious injury? Even if you are stuck with an admission of liability, it remains relevant to the severity of the injuries to show the trier of fact photographs of the wreck so that the mechanism of injury is understood.
Use Demonstrative Evidence to Bring Injuries and Impairments to Life
Demonstrative evidence in the form of photographs or medical illustrations go a long way to raising a case up from the oblivion of ordinariness. The medical illustration attached to this paper is dynamite in colour, but even in black and white you can see the fracture in the x-ray and the illustration makes it even more obvious. It is so much more effective to use pictures than words, because when you see the injury there is no denying that the body has been violated.
Fortify Your Case with Lay Witnesses
There is nothing so powerful as a battery of lay witnesses who speak to the devastation to your client’s life. They have far greater credibility than the experts because they speak in a language which juries understand. It can take many hours to identify, inform and prepare these witnesses, but calling them is one of the most powerful strategies I know for turning an ordinary case into an extraordinary one.
Convey Messages which Allow the Defence/Insurer to Conclude You Believe the Case is Extraordinary
It is one thing to tell an adjuster or opposing counsel that you think your case is worth more than the ordinary case. It is quite another to lead them to that conclusion through your behavior, because through this process they will start to believe it themselves.
How do you convey the message that a case is extraordinary? The list of devices is endless, but the following will give you the idea:
Plead the case as though it is serious, including detailed descriptions of the injuries and impairments (see sample, in appendix).
Order the pre-morbid and post-traumatic clinical and hospital records and serve them in advance of discovery.
Serve an affidavit of documents prior to discovery that is extensive and thorough.
Turn up on discovery with enlarged photographs and damage illustrations.
Provide detailed calculations of special damages.
Invest in the right experts’ reports.
Create charts reviewing medical history, treatment, medication and employment.
Put the Mediator/Pre-Trial Judge/ and Insurer in The Jury Box
I like to say at the beginning of a pre-trial and especially a mediation that I want to provide some sense of the plaintiff’s case as it will be presented at trial. With this introduction no one takes offence at my giving a mini-opening in which I use our most persuasive demonstrative evidence. When I’m finished no one has any doubt that we take the case very seriously, that we can prove it and that we are ready to try the case if necessary. It is a very effective strategy for ending an ordinary case with an extraordinary settlement.
Turn Weaknesses into Strengths
In my experience poor health histories are the norm. Perhaps because most people have the occasional need to see a chiropractor or the occasional need to seek emotional counselling, it seems that in the ordinary case defense counsel rely to this history to keep down the damages. But good counsel turn a poor pre-morbid health history into an advantage by framing the claim as a thin-skulled plaintiff’s case.
Here’s part of an opening I used recently which illustrates this strategy:
The beautiful, vibrant young woman in these photographs is Stacey Holmes. But this is Stacey as she was before the injury. This is not the Stacey you will meet in this courtroom – because the beautiful young woman in these photographs no longer exists. Where before there was beauty, vitality and the enthusiasm of youth, now there is chronic ill-health, depression and dependence. In a few minutes I will tell you how the defendant injured Stacey and how the injuries so transformed her.
But first we must reach farther back into time – because to understand why the injury destroyed the young woman we see in these photographs we need to know the story of her childhood and how it shaped her and made the Stacey in these photographs what she was.
Life for Stacey before the injury had not been easy. Her childhood compelled her to make a choice: to wither or to survive. Stacey chose to be a survivor. We will learn that Stacey’s father was an alcoholic. He was the worst kind of alcoholic, because when he drank Stacey’s father grew angry, mean and abusive to his wife and two children. He abused Stacey, her sister Tracey and her mother whenever he drank, and he drank often. He never hurt Stacey and her sister physically, but we’ll learn that he hurt them deeply in other ways. Stacey’s father broke Stacey’s and her sister Tracey’s young hearts over and over and over again.
Life with their father wasn’t always bad. Stacey and Tracey will tell us that he was a great dad when he was sober. The trouble was they never knew when they got home from school if he’d be drunk – so they lived with constant anxiety for what was coming next. Stacey’s mom stuck by this man for many years, always hoping things would improve, but they never did. Stacey and her sister Tracey did what most children of abusive alcoholic parents do, they tried to make everything ok. They helped to clean up his mess, they supported their mother and each other and they tried desperately to please. Even though Stacey was a year and a half younger than Tracey, she was much taller, and Stacey used her size to protect her sister from their father. And in this way Stacey’s role and personality were formed. Her strengths were born of the need to survive as a child in a frightening world.
Stacey will tell us that to console herself as a young girl she ate. Stacey ate so much she developed an eating disorder for which she sought medical help.
So as a teenager Stacey searched for an identity for herself while she was tossed about on a sea of abuse, anxiety and self doubt. How did Stacey cope? How did Stacey survive in spite of these challenges? How did she succeed where many would have failed? The answer will not surprise you; Stacey survived the abuse and the anxiety and the self doubt through achievement. Stacey tried to be the best at everything that she could be. You and I need to grasp the power of this drive to succeed.
We need to understand the past Stacey overcame, because if we are to give her justice, you and I must grasp and understand why Stacey’s injury caused her so much misery and pain. And why is that? What is the key to understanding this case? The answer is simple and we will see it unfold before our eyes as we hear from the witnesses: the defendant took from Stacey her ability to achieve. It was her achievement which gave her dignity and self respect – achievement was her armour. Robbed of the physical and emotional ability to achieve, the events of 8 years ago stripped Stacey of that armour so that the demons of her childhood could bring her permanently to her knees·
Here I must pause to talk about our law. It is essential that we understand and remember the wisdom of Canadian law. Under Canadian law a wrongdoer is not entitled to have a perfect physical and emotional specimen upon which to inflict damage. Our law is more compassionate; it says that if you harm someone who is vulnerable you must suffer the consequences. So if the victim suffers greater harm because she was more vulnerable than others that is the wrongdoer’s problem, because the victim didn’t ask to be injured.
And how does this compassionate and wise law bear on Stacey and justice in this case? Well, in every way Stacey was a teenager that you and I would be proud of as parents. But to understand what the defendant did to Stacey we must remember all of Stacey’s past and appreciate her as a whole person. Because of Stacey’s tendency to obesity and because of the emotional toll inflicted by her father Stacey was more vulnerable to injury than others might have been.
To so frame your case there is a need to fully appreciate the pre-morbid history at an early stage. Make sure the history is disclosed to all medical examiners and disclose your theory of the case. There is nothing improper in alerting a doctor to your theory of the case and helping him or her to have the proper perspective on your client’s injuries.
Disclose Strategically to Increase Reserves
One of the most important strategies for turning an ordinary case into an extraordinary case is to ensure that exposure is appreciated at as early a stage as possible. Why is this important? It is important because insurance companies have great difficulty settling cases for more than has been reserved and because the reserves will be ordinary (and low) unless you disclose sufficient information, including your demands, at an early stage and unless that disclosure effects the insurer’s perception of exposure.
Never Underestimate the Value of Your Case
If you want to turn an ordinary case into an extraordinary result, do not make the mistake of underestimating the value of your case.
I made this mistake recently and my experience might demonstrate the effect of this error. My client jumped onto the back of a van. The driver of the van, unaware of this prank, pulled away. My client fell off the van and hurt himself quite badly. To make matters worse it was dark and another vehicle drove over my client while he lay unconscious on the road.
My young client made a remarkable recovery. He was one of the very first OMPP threshold cases I took on, and perhaps because of this I was very nervous about the threshold. I was also, perhaps justifiably, very nervous about contributory negligence obliterating the recovery.
At an early settlement meeting I proposed a value for the claim that was less than $200,000. Some years later, in the course of preparing for a mediation, I became more confident about the case and concluded it was probably worth about $450,000. But at the mediation it developed that the reserves had never been set higher than $200,000 because the insurer and its counsel had relied on my first assessment of the claim. In fact the adjuster who came to the mediation had limits on her authority of only $200,000. I feel some confidence that if I had consistently maintained that the case was worth $500,000 it would have settled for much more than we were able to recover without risking a trial.
Take Advantage of The Insurer’s Fear of Bad Faith
Insurers are terrified of bad faith. Nothing is so powerful a tool of settlement as to offer to settle a claim within the policy limits, because the insurer risks exposure to its insured for failing to settle within those limits. Even an ordinary case can be properly developed so that there is some risk of a finding of damages beyond the policy limits, and that exposure is worth something when it comes to settlement.
Humanize Your Plaintiff
If you want to obtain extraordinary damages for your client, turn him or her into a human being with ambitions dashed, loves lost and dreams shattered. Humanize your client and give the jury the opportunity to identify with him or her. The following extract illustrates the technique:
You’ll meet Don soon and we’ll get to know him. We’ll see that he’s a soft-spoken, shy and humble man. We’ll see that he’s terrified of being here. He may have trouble understanding questions and answering them clearly. We’ll see that he is not sophisticated, that he has little education and very few personal advantages.
We’ll see that Don had to learn at a young age to be a survivor. Life has never been easy for Don. He’s a product of what God gave him. He is the youngest of four kids. He never gets to know his father because he walks out on the family when Don is a baby. Don’s mother raises Don on mother’s allowance and welfare until he is seven. Then tragedy strikes Don another blow. Cancer takes Don’s mother and leaves Don and his siblings entirely alone. There is no family left to care for them and give them love. They become wards of the Children’s Aid Society. To keep the children together, they are moved from foster home to foster home for brief stays. Don’s longest stay is with foster parents on a farm in Thornton. Other CAS wards come and go at the farm. Don leaves the farm and stays goodbye to his childhood when he is only 16. Since then he’s worked hard, whenever he could, all his life.
Don leaves the foster home with only a Grade 8 education. School has been a tough struggle for him. Reading and writing and detail don’t come naturally. It takes Don 11 years to complete the public school grades which were supposed to take 8. Even though he is older than the other kids in his class by three years, he is failing when he drops out in his first year of high school.
It’s not only his marks which lead him to drop out. Not only does he have a hard time keeping up with the other kids in school, but Don is cursed as a child with a stutter. Kids can be cruel as you and I know and the other kids tease him about the funny way he speaks. Because he is so much older and it hurts him deeply ö this boy who’s never had a father to help him become a man.
So we have a kid who loses both parents by the time he’s seven, who grows up in foster homes, isn’t blessed with great intelligence, who stutters, who has a Grade 8 education and who is forced to make his own way in the world at 16. It gets worse, because on top of all this Don starts to drink and becomes an alcoholic. Why does Don start to drink? We’ll learn that as a young man alcohol gives Don confidence. When Don drinks, he doesn’t feel shy and insecure and drinking enables him to speak without a stutter and feel like more of a man.
Within two years of leaving school Don becomes a roofer. Now he is 18. By the time of the collision he has been a roofer for 24 years. A roofer, a hard drinker, a survivor and a bit of a rascal.
There’s more. By the time Don’s 22 he is married and within five years he has four kids of his own. Don’s wife leaves him because of his drinking and he loses his kids. As time passes, because Don loves his kids and their mother can’t cope, the kids come back to Don and live with him.
Since then he has done his best to raise them and to recover form his addiction to alcohol. He’ll tell us that the disease of alcoholism has been a lifelong struggle for him and that it always will be. On two occasions since the collision Don has been in trouble with the law and spent some time in jail because of impaired driving. To his credit, Don’s problem with alcohol has never prevented him from working.
You’ll see Don’s hard life in his eyes and on his face when you meet him. You’ll notice that it isn’t easy for him to express himself, that his understanding of the world he lives in is basic and that for some reason his memory is awful. We’ll see a rough but decent man who has been able to do little more than just survive in this world where good looks and intelligence and education mean so much. Don has had none of those advantages. Not one of them.
This client was by many standards a scoundrel. He had never filed an income tax return. He was off work on workers’ compensation with a bad back at the time of his injury. He was an alcoholic. He made money under the table while he was taking unemployment insurance and accident benefits. But by humanizing this poor man, I believe the jury came to want to help him. The award was generous, probably because the jury felt sympathetic and could identify with this man.
It is impossible to provide an exhaustive list of strategies for turning an ordinary case into an extraordinary one, but hopefully these suggestions will help. In the end your imagination is your best strategy in every case.