I have had the unique opportunity to represent some very special people. They are the survivors of a loved one who has died from asbestos-related cancer, mesothelioma. While I have had occasion to represent men who were still living with this terrible disease, it is more common to represent surviving spouses or children of men who have died.
Because this disease does not occur until 30 or 40 years after exposure, very often the decedent was in his late 60s or 70s when he died. Often they were also retired, so they had no or very little income lost, and Medicare paid much of their medical expenses.
Given all of this, how can civil litigation attorneys make the argument for damages be made to a jury? The answer is simple; use your imagination and paint the picture.
When do personal injury attorneys start to make the arguments? Like any picture, it begins with a blank canvas. In most cases, it begins with meeting the victim and his family and beginning to think about the loss being experienced or to be seen in the future-
Examine the relationships:
- How long has he been married
- The closeness of him and his spouse
- How many children
- How many grandchildren
- The closeness of the relationship
Explore the family unit. What do they like to do? How do they spend their time? Do they camp, bike, go to ball games, watch IV, go to movies, dinners, barbecues? How often do they visit or call?
Start to add all of these basics to the portrait of the dead family. But go deeper. Ask for pictures. Pictures that span the years. Pictures of him working or in the Navy are powerful. Wedding photos from 30¬40-50 years ago and pictures today. Show how the family grew as a unit.
Deposition solidifies the colors
In your client’s deposition, make sure you talk about what the losses are now, but also what the future may be. What worries you about the future? What do you do now to take care of your spouse? Don’t talk only about the money lost, talk about the intangibles- The touch, the laugh, the garden he loved, the smile. This all adds depth to the portrait!
All too often, attorneys spend all their time on liability in the opening and nothing on damages. I think this is a tremendous mistake. Some judges may limit you but always bring the subject in front of the jury. You can introduce the painting. Maybe you can’t show all of it, but you can start to open the curtains. Give the jury a feeling for what they will hear.
This is where your early work pays off. You, of course, sit down and prepare the surviving spouse and/or children to go over the loss suffered. Many times they are hesitant to speak out either because they are intimidated being on the stand or because they are just not folks that express themselves well. It is your job to paint. You must pull them out of the shell. You must talk them out of fear; you must get them to open up and become personal. That’s not always easy, but you have to do it. What if they cry? To me that is human; you must give them time to emote.
This is where you finish the picture. You add the shadings and those little touches that complete the portrait. Most importantly, this is where inspiration and imagination come into play. I look for music and movies to draw the picture. It’s very difficult to explain the process on paper and examples work better.
The end result is that you develop a way to bring into focus the loss to the jury and it allows you to value the loss in a way that is comfortable and meaningful.
What losses can you ask for? Aside from pecuniary losses you are permitted.
From the very first time you met the family, you should have been thinking about the questions and answers that would respond to each of those words. What was the assistance that was provided? What was the decedent affectionate and how was it shown? What kind of moral support was provided? If you prepared the clients, all of the questions were answered.
Then the problem becomes how to convert those losses into a monetary value. Here you need the life expectancy which for a 60-year-old can be 20 years and for a 70-year-old another 12 years. Those years of loss have to be explained in a way that you don’t look greedy but are getting justice for your client. It will inevitably get down to a discussion of losses by day, month, or year.
With work, effort, and imagination you can draw the jury into your picture and allow them to do the final brush strokes.