OTLA Trial Lawyer Fall 2020

8 Trial Lawyer • Fall 2020 Count the Summers Continued from p 7 look like. Everybody in the eyes of the law is entitled to equal justice. And on those scales there are two items in this case. The first item, on one side of the scale, is what happened to Ms. Asbill. She was harmed and damaged. That side of the scale goes down (hands indicat- ing). What you’re asked to do today is to determine what needs to be put on the other side of the scale to bring the scales back into balance to compensate her for what has been taken. And the only thing the law allows you to consider are the harms and what it takes to equal those harms. If there are other things in your background that make you feel like you’ve got to reach out and put other things on the scale besides balancing the harms against the losses, then that’s what I’m hoping we can talk about.” Comment: Lady Justice is visual and almost universally known. Invoking her image is a labor-saving device that helps jurors understand what compensation means (to bring back into balance). I asked whether any jurors had suf- fered injuries because of the fault of someone else. One juror explained she was still suffering from injuries received 25 years ago. Another answered he was rear-ended by a drunk driver in 1979: “To this day, I still have some back prob- lems due to that accident….I just have to be very careful to take care of myself.” Allow jurors to discuss their own pain. When other jurors hear such comments, it helps all understand the case they are about to hear could be serious indeed. (That does not mean, however, that ju- rors with horrible injuries will be good for your case.) Andersen: “The standard of proof in a criminal case is beyond a reasonable doubt because somebody may be going to jail. In some cases a person could even lose their life. In a civil case like this, the standard of proof is a preponderance of the evidence. What it means is more likely than not. If those scales (hands indicating) tip ever so slightly in favor of one side as opposed to the other, accord- ing to the law, your verdict should be on the side that tips the scales ever so slightly.” Comment: Lady Justice is not only impartial; she is also just. The image of the scales of justice describes the burden of proof in a civil case far better than whiny platitudes. Introduce the issues Andersen: “The other item of damage is called noneconomic damages. It’s for a person’s suffering and pain, and the limitation of the person’s normal and usual activities from the date of injury to now, and that we believe the person will have in the future. Some people feel that’s entirely appropriate. Some people would say, well, that doesn’t make the pain go away, so I would be reluctant to award it. Is there anyone here who feels, even a little, that compensating a person with money for their suffering and pain would be hard to do or for any reason would be inappropriate?” Comment: You must discuss noneco- nomic damages in every injury case. Allow jurors to express how they feel by drawing out opposing points of view. Let the jurors know they will not be judged if they happen to favor one view over the other, even if the margin is “even a little.” Andersen: “One of the issues in this case will be— the legal term is causation. I don’t think I’d ever heard that term before I went to law school and I still think it’s pretty clumsy. The collision does not have to be, under the law, the only cause. At the end of the case, the judge will read you an instruction that talks about multiple causations. I’ll tell you up front, we’re not asking for one penny of compensation for anything other than what Mr. Hancock (the de- fendant) did. We’re not asking for money for the other reasons.” Comment: Without advocating your case, simply let jurors know the issues