Your case: A 69 year old woman is hit from behind in a car crash. Liability is admitted. Damages are that the woman can no longer sit longer stand more than 30 minutes at a time without pain so she can no longer attend her weekly morning hikes with a church group. She is widowed and has no children. Whole person impairment rating is 10%. Defense is arguing that damages aren’t that bad.
Your (likely) damages argument: Walking is important to her. Talk about how much they impaired her (using a whole person impairment rating). Make some argument about how much that 10% impairment is worth.
Not a bad argument. But sometimes it is stronger to argue not about how much the defendant took away from the plaintiff, but how much is left. This is an old Moe Levine trick and although I’m not sure I would use it in 100% of the cases, it can be very strong. For example, in the above case:
Your new damages argument: Talk about how a person is not what is taken away but what is left. Defense can argue that what is left is 90% of her but you need to flip that around. The important part is not the percentages. If all this woman had to look forward to was that walk – her one chance to socialize, to be a part of something – and the defendant took that away, she is left with nothing. She did not go from 100% to 90% – she went to 0%. She is left with being cooped up in the house all day with no one around.
Impairment ratings can actually harm your case. If you have a normal person and you take away 10% of their ability to walk, they are still able to do most things. Maybe they can’t run on a soccer team, but they can function in most areas of life. If, however, you have a plaintiff who is already impaired to the degree that all they can do is walk with a cane and you impair them another 10%, they can no longer walk at all. The fact that both people are impaired by 10% is irrelevant – you need to look at what is left, not what was taken away. In a case where the plaintiff is already impaired, most defendants then push the pre-existing condition issue and argue that they didn’t lose much more. What is another 10% on top of an already existing 80%? You need to argue that it’s not the extra 10% that matters – that 10% was allowing the person to function in life. Now what is left is someone who is wheelchair-bound and can never take another step – can’t walk his daughter down the aisle, can’t feel the sensation of walking, can’t just walk into the bathroom and sit down…you get the idea.
Again, I’m not sure I would use this in every case, but examine your damages and what the person started with compared to what is left and you make the call. It can be extremely powerful.
jurorproof 