A trial lawyer should persuade using both emotional impact and logic. The video below comments on what image will make a big emotional impact.
The video below describes another kind of image that results in a big logical impact. This will increase the amount of money awarded for loss of the financial help that the deceased family member would have given.
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How Large an Award: Measure of damages
Every case requires two kinds of proof. First, proof of liability, that someone was careless and it caused the death. Second, proof of how much should be awarded. This is called the measure of damages. Damages will include both lost income, and the effect on family life.
Oregon law prescribes the kinds of damages that may be awarded for wrongful death.
Oregon Revised Statutes 30.020 Action for wrongful death; when commenced; damages.
(2) In an action under this section damages may be awarded in an amount which:
(a) Includes reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent;
(b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death;
(c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent’s estate;
(d) Justly, fairly and reasonably compensates the decedent’s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and
(e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.
The loss of a family member is not just the loss of money. The law quoted above specifically allows recovery for “…loss of the society, companionship and services of the decedent.” For such non-economic damages, emotional impact is a big determinant.
The amount awarded for non-economic damages, such as loss of companionship, cannot exceed $500,000. ORS 31.710(1), (2)(b). This cap does not apply to objectively verifiable economic damages such as medical expenses, burial expenses, and loss of earning capacity. Nor does it apply to punitive damages. ORS 31.710(2)(a), (3). The jury cannot be advised of the $500,000 limit. ORS 31.710(4).
Unfortunately, there is no common-law right of recovery for wrongful death. See Ore-Ida Foods, Inc. v. Indian Head Cattle Co., 290 Or 909, 914, 627 P2d 469 (1981) (“There is no common law cause of action for wrongful death . . . .”).
In Greist v. Phillips, 322 Or 281, 906 P2d 789 (1995), the Oregon Supreme Court upheld the constitutionality of the $500,000 cap on noneconomic damages as applied to an action for wrongful death. A single action is subject to a single $500,000 cap, regardless of the number of claims or beneficiaries. Greist, 322 Or at 289. “Because wrongful death actions are ‘purely statutory, they ‘exist only in the form and with the limitations chosen by the legislature.’”
Even for lost future income, emotional appeal will affect the number awarded. Examples of visuals include family pictures, and a chart showing the earning capacity of the deceased family member.
Feedback About the Images
As you may know, movies are tested before they are released to the theaters. How did the test audiences like the movie? If it needs to be fixed, the movie studio will fix it because so much box office money is at stake.
For similar reasons, the main visuals for an accidental death case must be tested. My office does this regularly. We ask random people to react to a one-page story about the case, and show the photos. Sometimes we use split testing to see which visual presentation items help more and which visual presentation items help less.
What I personally think of a picture does not determine its value in presenting the case. The important visuals in the case must be exposed to people like the judge and jury, to see what they think. This avoids the human weakness often called confirmation bias. Using jury research, we avoid confirmation bias.
Testing is work, but necessary to check for unexpected reactions. I am seeking the opposite of confirmation bias. I have sometimes been surprised in the past when determining the settlement value of a case. This testing gives a big advantage.
If you have lost a family member because of someone’s carelessness, you should speak with a lawyer about your options. E. J. Simmons is a trial lawyer who represents families of deceased accident victims. He can be reached at (503) 221-2000.