7 Trial Lawyer • Winter 2022 who failed the community’s citizenship test, and in court they are once again showing their true colors by how they choose to defend themselves. You cannot argue the golden rule (ask the jurors to put themselves in the plaintiff’s shoes), however, jurors can’t help but think “there but for the grace of God go I,” or “it could have been me.” In trial, rather than personally attack the defendants, I like to prosecute the danger the defendants have created. Nothing ad hominem, this keeps you on the high ground. In other words, you’re judging acts, not people. When they inevitably attack your client, it then legitimizes you to respond in kind. Once we get to court, the defendants’ lawyers have replicated their clients’ lack of citizenship by their chosen defense tactics. When the defense suggests your client is exaggerating, call them on it. This is an opportunity to make the case not just about who’s telling the truth, but the citizenship of the defendant who would seek advantage by inuendo and opportunism. Prosecute the defendants for their defense.2 Damages Now let’s switch to damages. In many unappreciated respects, Oregon’s rules of damages and causation are favorable to the injured. Carefully study the UCJI. First, I want to discuss the liability rule of foreseeability, UCJI 20.03, that often blends nicely into damages with the benefit of the confirmation or hindsight bias. For example, a fragile plaintiff is clearly at risk and within the class of people threatened by the defendant’s conduct, and what has happened is foreseable given the plaintiff ’s precarious circumstance. For damages, start with the “as is” or previous infirm condition rule found in UCJI 70.06. It means all parties are equal before the law, and that includes the sick, aged and least among us. In fact, they need the protection of the law more than the strong, beautiful or rich. I like to frame my client’s otherwise modest objective damages as a loss of hope, dignity or humanity. Then go to the multiple causation instruction, UCJI 23.02. The law doesn’t require singularity, i.e., the cause, but only that the defendant’s conduct was a cause (the exact words are “a substantial or material contributing factor”). Then, read the basic damages instructions found in UCJI 70.02 regarding pain, suffering, and humiliation. What more do you need? Well, there is more. Consider submitting the following additional special instructions: • Enhanced future susceptibility: In assessing the plaintiff’s damages “the jury is also to consider any increased suscept ibi l i ty to problems and complications the plaintiff may sustain in the future because of the defendant’s negligence.” Feist v. Sears, Roebuck, &Co., 517 P.2d 675, 677-79 (Or 1973). • Allergic reactions to medication, and any adverse reactions to treatment are compensable. Graham v. Roberts, 441 F.2d 995 (D.C. Cir. 1970). • Any subsequent negligent care necessitated by the defendant’s misconduct is compensable. Seitz v. Heep, 10 So.2d 150, 153 (Ala. 1942); Ash v. Mortensen, 150 P.2d 876, 877 (Cal. 1944); West Digest Topic Damages, Key number 115k34 (Aggravation of Injuries by Disease or Other Cause). See Embrace Your Clients 8
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