In proving the magnitude of what was taken, we are often drawn to the dramatic, as opposed to the less exciting daily grind things. For example, in a wrongful death case involving a mother, the focus may be on big events like not being there for the daughter’s wedding or firstborn grandchild. In a herniated disk case, the plaintiff may want you to focus on him not being able to golf.
The problem is those events only occur occasionally. To focus on a marriage and child birth actually diminishes the immensity of what was taken by the wrongful death of a mother. By reducing her losses to a few big events, it seems like everything in between was fine and dandy. To focus on golfing reduces the impact of a disk injury to a half a day once or twice a week. To make matters worse, many won’t give a damn about his golf game and will see him as someone with money whining about extravagances (unless he was a professional golfer, or you are trying the case in a country club community).
Per diem arguments (where allowed) are one of the best damage models. They are based on living with loss, moment by moment, hour by hour , day by day. Even without per diem arguments, the ever-present nature of pain and suffering is essential to getting a just result for your clients. So, let’s take those two examples and change the focus to the little things that add up to a lot.
Wrongful Death Case
She wakes up every morning and remembers her mom’s not there anymore. When thing go wrong, she craves her mother’s tenderness. When things go right, she misses her mother’s joy. She can’t stop reaching for the phone to call her mother. It’s an instinct that won’t fade away. It is bittersweet. It starts with a feeling of connection and ends with the realization of a disconnect. Cooking meals from recipes her mother taught her trigger the same two-sidedness. She has so much more to say to her mom. She tells herself my mom can hear my thoughts, but that only goes so far. Emptiness and sorrow do not cooperate. It’s not like mom was taken by old age or even sickness. She was taken unnaturally and avoidably. Her mother was taken wrongfully, by someone who didn’t do their job right, who didn’t act reasonably. That is why they call it a wrongful death. And that wrong is with her always, she cannot shake it. It is not bitterness, it is the unnecessariness that haunts her. She can’t access happy memories without passing through the what-ifs and the injustice of how her mother was lost to her, and how it all could have been avoided had the defendant acted reasonably. Memories that should allow her to carry her mother with her peacefully come with such baggage that they lacerate, rather than alleviate.
Herniated Disk Case
He lives his life now walking a line between pilot light pain and flare-ups. He lives his life making little choices that add up to a lot, choices to do something or not do it. If he hoists his son up and swings him around to me him laugh, there will be a price to pay. Some days he does it and
lives with the flare-up, others he stoops down and tickles the child instead. Some days he takes it easy on his walks to keep the discomfort down to a flicker, other days he pushes to get a better workout, knowing what is coming. Somedays he mows the lawn slowly, taking breaks to avoid flare-ups; other days he just gets it done, then lays on a heating pad to tamp down the burning. His new baseline is to make choices like these. It has become such a part of his routine, he hardly thinks about it. It has become his new normal. It wasn’t that way before. It’s not something you can see from the outside, because he still does most of the things he did before. It’s not that he doesn’t do, it’s that he has to make choices to balance and manage the level of pain at any given time. He still is able to do much of what he did before, but the experience is different. Some level of pain or discomfort is always there like background noise distracting. Choices are constantly being made as to how much increased pain he wants to tolerate for the next few hours or days. It takes a tremendous toll over time. And this is as good as it’s going to get. As the natural aging process overlays on top of those damaged links in his spine, it is just a matter of time before it starts interfering even more with the doing, along with the experience of doing, keeping in mind this is a verdict for all time.
These examples show how the routine losses are where reality sets in that this is injury is a big deal. The impact lurking around the clock is what lowers the baseline quality of life. You cannot expect jurors to fully appreciate and value the enormity of loss unless you show them. To show them, you must enlist your client’s help.
Homework assignment
Before your client’s depo, give them a notebook and ask them to pay attention to all the little ways the injury touches them moment by moment, hour by hour, throughout the day, every day, for a week. Have them note it no matter how insignificant it may seem. Remind them that they really have to be tuned in for this process to work. Many of the small choices or adjustments they make, and small prices they pay, become such a part of their new normal that they tend not to mention them or think much about them. What is left is “I can’t golf”. Tell them, once they finish this task, they can go back to ignoring the impact as much as they can. Once you get the list, cull through it to pick out the ones that best allow you to recreate the reality of how much this injury has cost your client in the way of quality and enjoyment of life.