Discovery Tactics to Maximize Damages

• Author: Jim Wren
• Pages: 263-294

10-1

10. Discovery

Tactics

Chapter 10

Discovery Tactics to Maximize

Damages

I. Developing the Discovery Plan

§10:01 The Importance of the Complete Damages Story

§10:02 Directing Discovery to Support the Damages Story

§10:03 Calendar the Deadlines

§10:04 Use the Case Theme to Guide Admission-Seeking Discovery

§10:05 Use the Initial Damages Model to Fill in the Rest

§10:06 Use a Checklist Chart as an Outline

§10:07 The Value of the Damages Discovery Plan

§10:08 Develop Priorities

II. Developing the Key Fact Witnesses

§10:20 Connect the Jury With the Plaintiff

§10:21 The Three Phase Approach

§10:22 Find the Best Fact Witnesses

§10:23 Visit the Client and the Client’s Family

§10:24 Visit the Potential Witnesses

§10:25 Interviewing Potential Damages Witnesses

§10:26 Select the Quality Stories

§10:27 Develop the Pivotal Damages Witness

III. Deposing Your Own Damages Witnesses

§10:30 Use Video Depositions for Damages Facts Witnesses

§10:31 Prepare Clients and Witnesses for Deposition

§10:32 Videotape Your Witnesses

§10:33 Videotape the Plaintiff

§10:34 Videotape Your Damages Experts

IV. Keeping the Defendant on Defense

§10:40 Find the Basis for Anger

§10:41 Set Up Damages Issues With Requests for Admission

§10:42 Prioritize Witnesses for Deposition and Know the Goals

§10:43 Use Synchronized Video Depositions

Proving Damages to the Jury

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10. Discovery

Tactics

§10:44 Maximize Video Depositions for Impeachment

§10:45 Deposing the Retained Defense Expert

§10:46 Combating the Defense Medical Exam

V. Forms & Samples

10-1 Sample Checklist Chart

Discovery Tactics to Maximize Damages §10:02

10-3

10. Discovery

Tactics

I. Developing the Discovery Plan

§10:01 The Importance of the Complete Damages Story

Sometimes attorneys focus so intently on proving liability during discovery that proof of

damages becomes a stepchild, a virtual afterthought. Obviously that’s a problem.

But the answer to the problem goes beyond a careful cataloging of your client’s damages,

although that is important. You want to use discovery to support your full damages story,

and the “damages story” takes you right back to what is most important to the jury.

Jurors DON’T think mechanically, as in “proof of violation of a duty” + “resulting injuries

to plaintiff” = “verdict for damages claimed by plaintiff.” Jurors DO think (consciously or

subconsciously) about what matters to them, as individuals. If the case (as best the jury

can tell) is only about what happened to and matters to other people (the plaintiff and the

defendant), then the jurors probably have no personal, emotional investment in the case.

When there is no personal, emotional investment, then personal extraneous concerns (like

keeping down insurance rates and not becoming part of a perceived “runaway jury”) fill the

vacuum and become substantial factors in the decision making.

To say it another way, juries today are not typically motivated to bring back a large

damages verdict simply because the plaintiff has experienced and proven a great loss or

injury. The motivator comes from the desire to make a statement, and then the amount of

damages simply becomes a tool for making that statement.

So, understand that the “damages story” is more than a cataloging of injuries and losses to

the plaintiff. The damages story is the story of how the jurors can do something that is right and

that matters to their families and community. The damages story focuses on the significance of

the jurors in protecting families and community more than it focuses on the plaintiff.

Fundamentally, the damages case is expressed by the moral theme of the case (which is

all about why a verdict in this case is morally right and why it matters). Proof of the extent

of damages to the plaintiff is important, but that proof will probably be used by the jury only

to the degree that the jury is otherwise motivated to make a statement.

Thus, discovery must be tied first and foremost to supporting the moral theme of the

case, and then additionally to providing support for the amount of damages.

§10:02 Directing Discovery to Support the Damages Story

A well-told damages story draws the jury into the moral significance of the case, and

then into all of the ways in which the defendant has injured your client and your client’s

family. That kind of comprehensive story doesn’t just happen; it comes out of a systematic

discovery development plan.

We have a tendency to think of “discovery” in terms of formal discovery directed to the

defendant and third parties. Clearly that’s part of discovery, but the discovery phase of the case

is broader than that. It’s where you truly discover the story of how the defendant has impacted

your client and your client’s family, and why that should matter to the community. Often the

most vital parts of the discovery process are our conversations and observations outside of

depositions and written discovery. Those conversations and observations may appear random

and fortuitous, but they’re not. They are an intentional part of a planned discovery process.