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Recap: MCLE on Damages in Personal Injury Cases

About 50 attorneys attended a presentation on August 19, 2015, by Robert Buccola of Dreyer Babich Buccola Wood Campora, LLP on general damages in personal injury cases. Mr. Buccola has been recognized with numerous awards and has won some of the largest jury awards in the state. His presentation illustrated his skill at communicating with juries.

Mr. Buccola began his presentation with advice on developing a "theme" of the case, keeping in mind that all members of the jury are judgmental. An advocate must use that inherent quality of juries and cater to their desire to categorize everything into "good and evil" by vilifying the defendant or, if that is impossible, the defendant's attorney or the case itself. The point was that people may enter the jury with many preconceived views and you must lead them to view yours as the "good" side. Many people feel morally obligated to provide justice to the good and punish the evil, and a good attorney must find ways to present his side as the good and the other side as the evil. One must provide the jury with the empowerment to do the right thing and preserve justice.

In order to present an informed case, an attorney must be fully prepared and KNOW their plaintiff. Every medical record and every report must be read and reviewed. Every client must be thoroughly interviewed along with their friends, family, boss, fellow employees, and neighbors to find the good to present to the jury. The jury must be shown that the plaintiff deserves justice. His/her worthiness must be validated to the jury.

Mr. Buccola stressed that the important criterion for demonstrating loss of value to the jury is not what the plaintiff himself has lost, but the loss of his inability to give to others. Testimony about the loss to the plaintiff himself appears as whining. The information should be kept simple and positive, should focus on what the plaintiff has lost in giving and doing for others. Mr. Buccola cautioned against exaggerating, overstating, or the use of absolute terms "always" and "never," such as: "He is always in pain," or "She will never be able to do that again." These terms can cause the plaintiff to lose credibility with the jury.

Be objectively reasonable when presenting the claims to the jury, Mr. Buccola advised. Juries are very hard to fool and will see right through false or large claims. If there are bad facts, allow the jury to know those facts right away, he said. The advocate should work very hard on establishing worthiness.

When working with points to emphasize, Mr. Buccola advocated the use of illustrations, graphs, videos, pictures, drawings, etc. These will assist in the importance of the points being made and will make them much easier to remember. He cautioned against exploitation, grandstanding, or sensationalism, because those methods can turn a perception of "good" into one of evil.

Echoing his point above, Mr. Buccola stressed that when presenting the amount sought to the jury, the advocate should focus on what the victim's families, friends, and employers/employees have lost in the victim's inability to function as he did before the injury. The jury should not feel that it is awarding the victim a sum that will lead him to look back on the date of his injury as his lucky day.

Welcome Elizabeth Kim
Civility in Lawyers' Writing

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Wednesday, 12 August 2020

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