Arguing Damages, Element by Element – Part 5

Arguing Damages, Element by Element Part 5 – Sympathy, Disfigurement

The man who is to be in command of [effecting persuasion] must, it is clear, be able to reason logically, to understand human character and goodness in their various forms, and to understand the emotions that is, to name them and describe them, to know their causes and the way in which they are excited.

–Aristotle, Rhetoric

For damages, do not show that money will make the injured person’s life easier; rather, show how money will provide that wheelchair-equipped car so that the injured person can return to the safety and companionship of society. Below are several approaches that I have used, and some would say worked for me.

Damages Arguments That Work

Part 1: Dollar Amounts, Medical Expenses

Part 2: Mental Anguish, Pain and Suffering

Part 3: Lost Earnings and Capacity, Physical Impairment

Part 4: Death

Part 5: Sympathy, Disfigurement

Part 6: Gross Negligence and Punitive Damages

Part 8. Sympathy

The more catastrophic the situation, the more likely the Defense will indicate that the Plaintiff’s case is based on bids for sympathy rather than on the facts. Final Argument is the last chance to set the Jury straight:

Diffusing the “Sympathy” Accusation

“I hope you noticed how we presented this case to you. Names. Dates. Numbers. Facts. Documentation. Corroboration. We didn’t ask you to believe or feel anything that we did not prove with cold, hard details. We did that for a couple of reasons. One is that the facts are on our side. We knew we could prove to you––and to a preponderance of the evidence––that everything we said was true. We knew we could prove ourselves to be honorable, truthful, and worthy of your trust. We knew we could trust you with the truth.

There are other ways we could have tried this case. We could have asked Alberta to bring Lorena to court every day, right there in the corner, where you’d have to pass her all the time, where you’d have to see how she is today. We knew those feelings would be tough for you.

They might even confuse you and make you wonder if you were deciding her case on sympathy. There is another reason, too. We thought that if Lorena were here, you might have been too distracted to listen to how decisive our evidence really is. You needed to hear the evidence, not ache for the child. And now that you’ve heard all the facts in this case––without distractions––we think you’ll agree that the facts speak for themselves.”

Part 9. Disfigurement

If the Plaintiff’s appearance has been altered by the incident, probably disfigurement damages are appropriate. It’s tricky emotional territory, for Plaintiff and Jury alike, and calls for thorough and tactful planning to assure that the Plaintiff’s dignity isn’t compromised by his own lawyer’s presentation. Saying less may be better than saying more, but talking about disfigurement, factually and intelligently, is a true Jury service.

Discussing Disfigurement

“We’re a superficial society. We’re ridiculously vain about how we look. Have you ever gone to a party wearing exactly the wrong clothes? Everyone’s in cocktail clothes and you’re wearing sweats. Or you’re dressed to kill and they’re all in grubs? You remember the feeling. It’s hard to be so obviously different from everyone else. It’s beyond embarrassing. You can’t wait to get home and change.

But some people can’t get home and change so they’ll fit in. It’s beyond embarrassing because of the way our society is about appearance. Think about Hollywood. It’s villains who are all scarred up, except in movies like The Elephant Man or The Mask, or even Edward Scissorhands, whose whole point was how badly our society treats people who look different from the rest of us on the outside, even though they are unusually beautiful inside.

We seem to equate scars of the flesh with hate and pain and evil. We’re afraid to look at scars that reveal all the pain that went before. In fact, I’m not even going to show you pictures of Joshua’s legs and back. I know you’ll take my word for it that he is badly, badly scarred.

Does everyone here know what the Mona Lisa looks like? What if a criminal took a knife and slashed up the Mona Lisa? Then, at the criminal’s trial, his Defense lawyers would come in here and say, ‘So what’s the big deal? It’s only a little gash over there at the side. It didn’t even wreck her smile.’ There wouldn’t be any question about what would happen to a criminal who scarred up the Mona Lisa. Why should there be a question about the Plaintiff’s disfigurement––a merciless mark on God’s own creation, Joshua’s body?”

Part 10. Loss of Enjoyment of Life

Unless it is clearly distinguished from mental anguish and pain and suffering, arguing lost enjoyment of life is dangerous, it could result in a double recovery. The Plaintiff’s lawyer might consider the following topics, with supporting evidence from Plaintiff or family members, when deciding the nature of the losses to be argued:

Itemizing the Details of Loss of Enjoyment

Activities of Daily LivingShoppingSmellingJogging Hiking Dancing Exercise
DressingRecreational ActivitiesSensationsRelationships–(inability to provide to spouse and children)
Bathing Eating DrivingTennis BowlingVision HearingCare Comfort
WalkingSkiingTastingSociety and protection

To Part 6 → Gross Negligence and Punitive Damages

Author: Jack McGehee (McGehee ⋆ Chang, Landgraf, Feiler)