9 Trial Lawyer • Winter 2022 resist attacking my clients as underachieving low-lifers (and by community standards there may be some merit to this). I just let them go (not that I have much choice). Then, during closing, I say it’s not my client who’s lost their way; no, it’s the Boys Scouts. “This is your son. The worse he is, the more he needed the Scouts (or any other church or youth organization) to be at their best.” I then quote the lofty goals the defendant service organization publicly touts during their fund-raising efforts, how they are a beacon of character, and all the ways they claim they will guide our youngsters. The more compromised my client was, the more likely they would be the target of predatory pedophiles, and now that is their defense! Sometimes I never bring my client into court when I know the plaintiff will make a poor impression in their depo and probably won’t do much better in person. Don’t be fooled, the plaintiff’s chair in court is never empty. The jury will impute or project into the chair the person they believe the plaintiff actually is. Of course, the defense can always play the plaintiff’s deposition. I know that and prepare my clients accordingly. My record will include some personal photos of the plaintiff, and I will find a few special witnesses who will testify regarding the best of my client — even if well hidden. I have a treating therapist testify pursuant to ORE 803(4)3 to everything the plaintiff has told them for the purpose of diagnosis and treatment and, further, explain the emotional damages the plaintiff would suffer if they were unnecessarily called to court and asked to publicly relive the original trauma. Their treater can explain why the plaintiff behaves in often self-destructive and unattractive manners and how, after multiple sessions of intense therapy, the counselor has come to know the “real” person. Needless to say, this is a strategic decision that requires informed consent made on a client-by-client, case-by-case, basis. Don’t make your case about your client. If you do, the inevitable result is the jury is invited to be constantly scrutinizing your client. It’s called “counter- factual reasoning.” The jury will replay the liability facts over and over coming up with all the ways this tragedy never would have happened if only the plaintiff hadn’t _______ (left for work early, hadn’t taken the elevator, didn’t wear high heels, etc., etc., etc.). The list never ends. That’s one more reason why you want to start with the defendant and never let up. Quantitative and qualitative Next, I want to discuss the difference between quantitative and qualitative damages analysis and arguments4 by considering the multiple possible responses to the simple question: “Who has lost more?” Assume we have two people, one is a millionaire and the other a beggar with only one dollar. Take away half of what each person possesses and then ask, “Who has lost more?” We know under a quanitative or numeric model it’s obviously the millionaire. He’s lost $500,000, which is far, far greater than the 50 cents the beggar lost. Smug with the knowledge that half a million is always more than half a dollar, shift the focus of the same question using a qualitative or more intimate and personal analysis and ask which loss means more to each of them.5 As you do this, reflect upon the biblical story of the Widow and the Mites (small coins). The Gospel of Luke, Chapter 21, verses 1-4 says: And he looked up, and saw the rich men casting their gifts into the treasury. And he saw also a certain poor widow casting in thither two mites. And he said, Of a truth I say unto you, that this poor widow hath cast in more than they all: For all these have of their abundance cast in unto offerings of God: but she of her penury hath cast in all the living that she had. This scriptural material is powerful, not necessarily because of any historical accuracy, but for the social and moral values it embodies. Regardless of anyone’s particular religious orientation, this story expresses essential moralities in our culture’s Judeo-Christian heritage. This is the heart of the “as is” values embedded in UCJI 70.06. When a jury returns a large verdict, defense lawyers sometimes express surprise saying it was a “runaway” jury. What more often happened is a good plaintiff’s lawyer persuaded the jury to analyze the damages through a qualitative or intrinsic lens instead of from a quantitative or subtraction model. My approaches are well suited for beginning lawyers who don’t get the big cases with large, obvious objective damages. When I was younger this is how I processed my early cases to maximum value. Immerse yourself in the values behind rules, embrace your clients with all their flaws, become their shepherd. Bill Barton is a trial attorney at Barton Law Firm PC. He contributes to OTLA Guardians at the Guardians Club level. His office is located at 214 SWCoast Hwy., Newport, OR 97365. He can be reached at attorneys@bartontrialattorneys.com or 541-265-5377. 1 Ball, David and Keenan, Don, “Reptile: The 2009 Manual of the Plaintiff’s Revolution” (2009). 2 Friedman, Rick, “Polarizing the Case, Trial Guides”, Portland OR (2007). 3 ORS 40.460 Rule 803. Hearsay exceptions: (4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 4 These arguments are developed in Chapter 1 of my book, “Recovering for Psychological Damages”, 3rd Ed., Trial Guides, Portland OR (2010). 5 For my generation, the argument belongs to the great Moe Levine, who died in 1974. Trial Guides has compiled many of Moe’s closings and speeches in “Moe Levine on Advocacy” (2009).
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