Preparing for common legal and factual issues

• Author: Jim Wren/Laura Brown
• Pages: 461-488

PREPARING FOR COMMON

LEGAL AND FACTUAL ISSUES

20-1

CHAPTER 20

PREPARING FOR COMMON

LEGAL AND FACTUAL ISSUES

I. ANTICIPATING LEGAL AND EVIDENTIARY BATTLES

§20:01 Thinking Ahead on Damage Arguments

§20:02 Preparing to Make the Argument Concisely

§20:03 Five Steps for a Legal Authority Notebook

§20:04 Common Legal Issues Pertaining to Damages

II. REDUCED LIFE EXPECTANCY

§20:10 Factual Responses to Reduced Life Expectancy

§20:11 Legal Responses to Reduced Life Expectancy Evidence

§20:12 Responding to Annuity Evidence

III. EVIDENCE OF TAX EFFECTS

§20:20 Common Defense Arguments on Tax Effects

§20:21 Dealing With the Norfolk & Western Case

§20:22 Responding to Tax Effects Arguments in Physical Injury Cases

§20:23 Responding to Tax Effects Arguments in Other Cases

§20:24 Plaintiffs’ Claims for Adverse Tax Consequences

IV. COLLATERAL SOURCE EVIDENCE

§20:30 Assaults on the Collateral Source Rule

§20:31 Justifying the Collateral Source Rule

§20:32 The Collateral Source Rule in Contract Cases

V. AGGRAVATION OF PRIOR INJURIES

A. The Problem of a Preexisting Condition

§20:40 Viewing a Preexisting Condition as Damaged Goods

§20:41 Jury Instructions for Preexisting Conditions

B. Turning the Problem Into a Strength Rather Than a Weakness

§20:50 Gather All the Evidence

§20:51 Prepare to Negate Other Causes

§20:52 Emphasize Vulnerability

§20:53 Explain the Fear of Rejection

§20:54 Consider the Use of an Expert

§20:55 Explain Attacks to the Jury

PREPARING FOR COMMON

LEGAL AND FACTUAL ISSUES

Proving Damages to the Jury 20-2

VI. DISFIGUREMENT

§20:60 Connect Disf‌igurement to Isolation

§20:61 Use Family and Friends as Witnesses

§20:62 Questions for Your Client

§20:63 Opening Statements and Closing Arguments

VII. LOSS OF CONSORTIUM

§20:70 Clarify the Meaning of Consortium

§20:71 Look to Case Law for a Def‌inition

§20:72 Instruct Clients and Witnesses on the Meaning

§20:73 Explain the Meaning to the Jury in Everyday Terms

§20:74 Consider Loss of Consortium for Children

VIII. VICARIOUS LIABILITY

§20:80 Do Not Limit Discussion to the Court

§20:81 Jurors Have No Concept of Vicarious Liability

§20:82 Some Jurors Will Protect the Employee; Others Protect the Employer

§20:83 Pursue Theories of Direct Fault

§20:84 Prepare to Defeat Defendant’s Motion to Dismiss

§20:85 Submit Evidence of Both Direct and Vicarious Liability

IX. WEALTH OF THE PARTIES

§20:90 Generally References to Relative Wealth Are Improper

§20:91 The Law Does Not Allow Appeals to Prejudice

§20:92 References to Relative Wealth Tend to Boomerang Psychologically With Juries

§20:93 Financial Considerations May Be Relevant to Motivation

§20:94 Look for Ways to Make Financial Motive Relevant