The Illinois Trial Practice Weblog

For Plaintiffs' Lawyers: A Reminder about Damages from David Ball

Here's a portion of the first three paragraphs of the preface to David Ball on Damages, which makes a point that's driven home throughout the book:

Over the past few years at my damages seminars, I have asked thousands of personal injury attorneys, "How many of you tell jurors that preponderance applies not only to liability but also to verdict size?" Fewer than 2% raise their hands. Traditionally, plaintiff's attorneys have thought so little about damages that they have not mentioned the burden for decision making about money.

As a result, a common juror comment in deliberation is, "Well, I'm just not completely convinced that the verdict should be $________. They didn't absolutely prove it." Not even the most favorable plaintiff's jurors argue with that, because they don't know they should and they don't know how.

This failure is a perfect example of how attorneys ignore damages.

Even if you don't own the book, these paragraphs will give you a little something to incorporate into your next trial.

Related post: "An Example of the Use of Demonstrative Evidence in a Modern Case."

Explaining Money Damages to a Jury: One for the Plaintiffs' Lawyers

There's a good post at the South Carolina Trial Law Blog: "Explaining Money Damages to the Jury."

I say it's for plaintiffs' lawyers, but won't defense lawyers benefit too? It certainly can't hurt to learn more about the strategies of plaintiffs' lawyers.

Which brings to mind another point. I know of several trial-practice weblogs written from the plaintiffs' perspective. Are there any written strictly from a defense point of view?

If you know of any, please leave a comment.

Proving Future Pain and Suffering in Illinois: When Is Expert Testimony Necessary?

Here's the First District in Stift v. Lizzadro on the issue of whether expert testimony is needed to prove damages for future pain and suffering:

[L]ay testimony will only suffice to warrant a jury instruction on future pain and suffering when the existence of the plaintiff's ongoing pain and suffering would be readily apparent to a lay jury from the nature of the injury. See Maddox, 265 Ill. App. 3d at 1010-11, 639 N.E.2d at 167. In Maddox, the court effectively articulated and analyzed this rule as follows:

Where future pain and suffering can be objectively determined from the nature of an injury, the jury may be instructed on future pain and suffering based on lay testimony alone or even in the absence of any testimony on the subject. Where future pain and suffering is not apparent from the injury itself, or is subjective, the plaintiff must present expert testimony that pain and suffering is reasonably certain to occur in the future to justify the instruction. Maddox, 265 Ill. App. 3d at 1011, 639 N.E.2d at 167.

The Stift court held that the trial court had properly refused the plaintiff's instruction on future pain and suffering where the plaintiff's pain was not readily apparent to the jury and the expert's testimony about future pain and suffering was ambiguous.

Juries and Punitive Damages

From the law firm of Quinn Emanual: "How Juries Think About Punitive Damages: The Empirical Evidence"--

Juries ignore their instructions. Juries don't understand their instructions. Juries can't remember their instructions even minutes after reaching a verdict. These are not the conclusions of a cynical trial lawyer, but some of the findings from a recent empirical study of how juries think about punitive damages.

Not surprisingly, studies of punitive damages have concluded that although juries feel about the same amount of "outrage" over a particular incident, there is often little agreement about how to translate this outrage into a dollar award. Other conclusions can be found in the full article.

Damages for Aggravation of Preexisting Injury

The current issue of Trial Briefs, the newsletter of the ISBA's section of civil procedure, has a good article on a perennially popular topic: whether the aggravation of a preexisting injury is a separation item of damage.

Here's the link (pdf):  "Aggravation of preexisting condition" as a separate element of compensable damages," by James F. McCluskey. In the article, you'll find an analysis of the state of the law in each district of the Illinois appellate court.

A Product Liability Newsletter

Product Liability Report is a publication of Wilson, Elser, Moskowitz, Edelman & Dicker LLP. The Spring 2004 report (pdf) had two articles that might be of interest to litigators:

• "To Remove or Not to Remove?" and
• "2004 Punitive Damages Review"

The second article contains a useful state-by-state analysis of the various laws of punitive damages.

Instructions: Aggravation of Pre-Existing Injury

According to Illinois Pattern Instruction (IPI) 30.03, the "aggravation of any pre-existing ailment or condition" is a separable element of compensable damages under Illinois law. However, as the comment to IPI 30.03 notes, the First District disagrees about this, as evidenced by Smith v. City of Evanston, 260 Ill.App.3d 925, 631 N.E.2d 1269, 197 Ill.Dec. 810 (1st Dist. 1994).

In Luye v. Schopper, No. 1-02-0610 (1st Dist. 2004), the First District reconsidered the Smith holding and reaffirmed it, stating that IPI 30.03 misstates the law and should not be used:

In Smith, the appellate court determined aggravation of a preexisting condition did not constitute a separate element of damages because it would overcompensate plaintiffs due to the overlap of aggravation of a preexisting injury with awards for other elements of damages. Smith, 260 Ill. App. 3d at 935-36. The Smith court held that although the aggravation of a preexisting injury should be taken into account in awarding damages, it was error for the trial court to give the jury an instruction and itemized verdict form with aggravation of a preexisting condition as a separate element of damages. Smith, 260 Ill. App. 3d at 935.

IPI 30.03 remains viable in some other districts; be sure to conduct your own research before using this instruction (or objecting to its use).

The Cost of Caring for a Minor Child

Query: In Illinois, can a parent whose minor child is injured in an accident sue to recover damages for the services rendered in caring for the child?

Proving Up Medical Bills #3

Here are some tips for proving a plaintiff's medical expenses:

1. Try to get a stipulation with opposing counsel about medical bills. Often this will alleviate many of the problems of proof; even so, be sure to have a back-up plan just in case.

2. A good time to discuss stipulations is just before the deposition of a treater; a stipulation will shorten the deposition by obviating the need for testimony about usual and customary charges and the like. Be sure to put these stipulations on the record.

3. Since payment of medical bills establishes the reasonableness element, proof problems can often be simplified by having the plaintiff pay any outstanding medical bills, unless there are strategic or financial reasons not to do this.

4. At trial, you should prepare a summary exhibit of all the medical bills, which can be admitted into evidence after you've established proof of the underlying medical expenses that are totalled up in the summary exhibit.

5. It's often wise to present some of the plaintiff's testimony about medical expenses outside the hearing of the jury, especially if you think he or she may be unable to remember not to mention insurance.

Proving Up Medical Bills #2

Today we'll take a look at the use of Requests for Admissions to establish the foundational elements needed to prove past medical expenses.  (These foundational elements were discussed in the last post.)  My form Request for Admissions dealing with medical bills looks like this:

1.  Concerning Exhibit 1, which is attached, please admit:

(a)  The genuineness and authenticity of the exhibit;
(b)  The exhibit is a copy of a medical bill for services rendered to plaintiff, on the dates indicated on the exhibit, by [name of provider];
(c)  The total charges for the services listed on the bill are [amount];
(d)  The services reflected in the bill were necessary for the diagnosis or treatment of Plaintiff’s [condition at issue in the lawsuit];
(e)  The services reflected in the bill were necessary for the diagnosis and treatment of injuries sustained by Plaintiff in the [type of accident] that is the subject of this case;
(f)  The amount of the bill is reasonable; and
(g)  The exhibit is a true, correct and complete copy of a genuine original.

In many cases, the defendant will admit all but (e), which will require expert testimony about causation.  Even if the defendant fails to admit some of the other sub-parts, you will know when you receive the defendant's answers exactly what issues will be disputed at trial.