The Fellows of the American College of Trial Lawyers put on a great seminar today: “DAMAGES: It's All About the Money. How to Get it. How to Keep it.” Among the speakers were Schmidt, Sethi & Akmajian's own Ted Schmidt and Peter Akmajian, who spoke about punitive damages and wrongful death damages, respectively. Other topics included day-in-the-life video evidence, commercial litigation damages, hedonic/loss of enjoyment of life damages and addressing damages without violating ethics. Here were a few takeaways from today's presentation:
- Day-in-the-life videos are not only a very valuable way of illustrating the injuries a person has suffered to a jury, but of illustrating the same to an adjuster/defense lawyer during settlement. This is especially true if you have very likeable clients.
- Damages in wrongful death claims can be driven by the defendant's conduct more so than the likeability of the surviving family members or the actual damages they have suffered.
- It is important to consider punitive damages in wrongful death claims because it might be the only way to get damages based on “aggravating circumstances” to a jury.
- Judges are increasingly taking over a jury's role in awarding punitive damages by changing punitive damages verdicts after de novo review on appeal. Based on this increasing trend, It's important to weigh and balance the pros and cons of bringing a punitive damages claim because in doing so you are inviting an appeal.
- Commercial damages and valuation are primarily driven by the reasonable certainty of those damages. It is advisable to hire an expert when damages like the valuation of a business and lost profits are in play.
- Consulting with other people who share the same injury or disability as your client can be a valuable way to know what questions to ask your client and understand what they are going through in order to better articulate his or her struggles to a jury.
- Though this has for the most part been rejected so far by the courts, there is a growing attempt to use evidence and experts to try to economically quantify and measure things like the value of life and happiness.