November
2010
The Dilemma of Not Challenging Damages
Much has been written advocating the need for a defendant in a civil trial for catastrophic injuries to challenge plaintiff’s damages for fear of a runaway verdict. Such articles posit that if a plaintiff introduces experts on the issue of his/her future life care needs, along with an economist to quantify the present value of such damages, then it is incumbent on the defendant to introduce experts to contradict plaintiff’s evidence in an effort to control any potential jury award. While recognizing the natural fear of many defense attorneys’, such evidence can actually undermine the strengths of a defendant’s liability position.
Where the defendant’s liability case is strong, the defense must show confidence in its position. Standing after each of plaintiff’s damages witness and simply stating “The defendant does not contest the seriousness of the plaintiff’s injuries, and sees no reason to question this witness,” sends a powerful message to the jury. Such a statement focuses the jury on the real issue in the case–liability. Unfortunately, defense counsels have over the years been conditioned to believe that they must oppose every issue presented by opposing counsel. However, choosing wisely the issues that you contest at trial is critically important to a successful defense.
Recently, we applied this approach in a jury trial involving a tragic accident to a 15 year old boy who suffered quadriplegia as a result of losing control while jumping over a man-made ski jump in a terrain park of a local ski area. Our approach kept the focus on the real issue in the case–liability. After 3 1/2 weeks of evidence, the jury deliberated for less than 1 1/2 hours in reaching a unanimous verdict in favor of the ski area. In interviewing the jury after the case, we were told that they appreciated the simplicity of the defense. They recognized that we accepted the catastrophic nature of the plaintiff’s injuries and damages, and were focusing their attention on the issue of whether the ski area was liability for having caused the plaintiff’s injuries. Had we fought damages, our position as to liability would have been seriously undermined.
In those situations where liability is hotly contested, defense counsel should consider focusing solely on that issue. It sends a powerful message and demonstrates true confidence in your position.