Other Legal Battles on Damages

• Author: Jim Wren
• Pages: 649-668

23-1

23. Other Legal

Battles on

Damages

Chapter 23

Other Legal

Battles on Damages

I. Anticipating Evidentiary Issues for Damages

§23:01 Prepare to Make the Argument Concisely

§23:02 Five Steps for a Legal Authority Notebook

§23:03 Common Legal Issues Pertaining to Damages

II. Evidence of Plaintiff’s Reduced Life Expectancy

§23:10 Factual Responses to Reduced Life Expectancy

§23:11 Legal Responses to Reduced Life Expectancy Evidence

§23:12 Responding to Annuity Evidence

III. Evidence of Tax Effects

§23:20 Common Defense Arguments on Tax Effects

§23:21 Dealing With the Norfolk & Western Case

§23:22 Responding to Tax Effects Arguments in Physical Injury Cases

§23:23 Responding to Tax Effects Arguments in Other Cases

§23:24 Plaintiffs’ Claims for Adverse Tax Consequences

IV. Collateral Source Evidence

§23:30 Assaults on the Collateral Source Rule

§23:31 Justifying the Collateral Source Rule

§23:32 The Collateral Source Rule in Contract Cases

§23:01 Proving Damages to the Jury

23-2

23. Other Legal

Battles on

Damages

I. Anticipating Evidentiary Issues for Damages

§23:01 Prepare to Make the Argument Concisely

Some evidentiary issues pertaining to damages arise often enough to be relatively

predictable. This chapter briefly details three such issues.

I also recommend that these evidentiary points be presented succinctly.

Many state court trial judges operate with little or no help from briefing clerks. Even

though federal court trial judges do have briefing clerks, the judges are still often faced with

making evidentiary decisions during trial with little time to study the arguments and case

law cited by the litigants.

As a result, in a close call during the midst of trial, the decision often goes in favor of

the attorney who can present the argument most concisely, logically, and with the clearest

applicable authority. In the heat of trial, with the jury sitting in the box, long legal memoranda

on evidentiary issues are usually useless or even counterproductive. Brevity wins.

§23:02 Five Steps for a Legal Authority Notebook

Well before trial, as evidentiary issues occur to you, start compiling Bench Briefs (i.e.,

short legal memoranda for presentation to the court as needed during trial) and keep them in

a Legal Authority Notebook. This will bring a level of organization allowing you to power

past most evidentiary issues in trial.

• Step 1: As part of your trial notebook system, set aside one notebook labeled

“Legal Authority.”

• Step 2: Subdivide the L egal Authority notebook into three sections with an Index

in the front. The three sections are:

• Bench Briefs.

• Supporting Authority.

• Legal Authority Received.

The middle section, Supporting Authority, is where you will place a copy of

each case or other authority cited in any of your Bench Briefs, with key portions

already highlighted.

The last section, Legal Authority Received, is simply a blank section in which to place

any legal briefs, case law, or other authority provided by your opponent during trial.

• Step 3: The first section, Bench Briefs, contains the key to your method. Include a

prepared Bench Brief on each evidentiary issue that you can foresee arising during

trial, separated by numbered tabs. Each Bench Brief should address only one

key question and be only a one to two pages in length. There are two reasons for

limiting each Bench Brief to no more than two pages:

• This forces you to be succinct, setting forth your very best argument with the

very best authority and nothing more.

• These Bench Briefs actually get read and relied upon in the midst of trial.

When you hand the judge a single-page or at most a two-page Bench Brief,

with a clearly stated issue and answer, typically citing and briefly quoting from

only one to three cases, you are implicitly communicating confidence in the

clarity and simplicity of your position. These Bench Briefs work.