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
