45 Trial Lawyer • Fall 2022 a job as brewmaster at another brewery. A helpful case was Richmond v. Zimbrick Logging, Inc., 124 Or App 631 (1993), which explains that impaired earning capacity is a much broader concept than loss of future income. The court illustrates this distinction by noting that a housewife can recover for lost earning capacity, even though she probably did not lose any future income. Id. at 634-35 (quoting Grimes v. Hastlett, 641 P2d 813, 818 n.3 (Ala. 1982)). That meant the defendant would have to compensate Moutal for his diminished economic horizon, regardless of whether he would have realized his maximum potential. Punitive damages We alleged punitive damages in our first complaint in federal court, something not allowed in state court. As evidence of the defendant’s state of mind, we noted he failed to render aid to the injured bicyclists, despite having a first aid kit, and did nothing to make the See Bike Case 46 impact scene safe. He said to eyewitnesses: “Did you see the bicyclists, they were in my lane” “I had no choice but to hit them” “I can’t believe he fucking got in — got in my lane, I’m gonna fucking lose my job.” The driver then added that he was “gonna have to live with this for the rest of his life,” that he “can’t believe this, it’s their fault, they got in his lane, he struck them.” He told the police officer: “He came into my lane. I had no place to go. I got to live with this for the rest of my life.” DHL moved to strike our claim for punitive damages, including all allegations of post-crash conduct, arguing it was irrelevant to the claims at issue. The defendant lost this issue because Oregon law is clear that ex post conduct can be probative of a party’s state of mind. The definitive case on the admissibility of ex post conduct is Mason v. Householder, 58 Or. App. 192, 195 (1982). Prac t i c e t i p : Anchor puni t i ve damages to objective statistics, such as corporate profits. Polarizing the case We think of jury trials as partial referendums of citizenship of the attorneys and their clients. As plaintiffs, we are the only parties facing the burden of proof. We work hard to wear the white hat (or at least the whitest hat in the courtroom), and we attempt to keep our cross examinations “ABC” (accurate, brief and clear) and professional. Be alert for opportunities to polarize or reframe your case. You should seize upon suggestions by your opponent of your plaintiffs’ underhanded behavior or lack of character. This doesn’t include incidental slip ups or accidental mistakes. Instead, focus on strategic acts, choices and arguments whereby an opponent attempts to put you and/or your client in a false light. By this intentional conduct, your opponent has “opened the door.” This is the essence of Rick Fried-
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