Even when injuries are catastrophic, jurors can be reluctant to hand down a large award for pain and suffering. But at trial against two Florida bars over the devastating brain damage a teenager suffered in a late-night crash, Mark Avera’s vivid closing conveys the enormity of the crash victim's loss and sets up a massive verdict.
Jacquelyn Faircloth was 18 when she was struck by a pickup driven by Devon Dwyer, then 20. The 2014 crash left Faircloth with lifelong brain damage, unable to communicate verbally or care for herself.
In closings of the trial against two bars that served booze to Faircloth and Dwyer, Avera, of Gainesville’s Avera & Smith, began the damages portion of his argument by arguing which parties were at fault and why. “I would submit to you that the adults who own liquor licenses, when they provide or sell alcohol to underage people, know, or certainly should know, that if they do that for long enough… that something like this can happen,” Avera says as the jury sees pre and post-accident photos of Faircloth.
The photos serve as a cornerstone of Avera’s damages argument: the devastating contrast between Faircloth as the exuberant, enthusiastic teenager — a children’s swim instructor excited about college and the life ahead of her before the crash — and the young woman now immobilized in her body after the collision.
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“I was quite certain that I could stand up here and talk about the science and perception-reaction times, and evidence of impairment,” Avera said, referring to the liability portion of the case. “But I’ve never been certain whether I can stand up here and describe to you… what the difference in her life is today.
“The best I can do is to suggest to you all the things that people,on a routine basis, take for granted.”
And that list, the list of lifetime moments that Avera says Faircloth — a “passive observer” in her own life — will miss because of the crash, strikes at the heart of what most jurors consider most precious in their own lives.
“She’s not going to enjoy the love of a young man that she dedicates her life to… and to start a family,” Avera said. “She will not pick a wedding dress. She will not have a wedding shower, or a baby shower. She will never be able to look at her first child for the first time, carry that child on her hip, read bedtime stories, and sing lullabies to that child.”
Avera’s spotlight on those moments helps jurors empathize with the magnitude of the crash’s impact far more powerfully than simply showing photos of her medical treatment.
And Avera reminds jurors that Faircloth remains painfully aware of her condition. “We know that Jackie Faircloth will have to experience some of those things through the stories of others,” Avera says. “Her friends that come visit her, who’ve graduated from college and now are moving on to jobs, and careers, families, love.
“She won’t know that.”
Avera tells jurors that, of all the things the sides disagree on, they are in accord on at least one issue. “Mr. Carney [the defense attorney] told you this is a case you’d never forget,” Avera said.
Jurors awarded $30.8 million, including $7 million for Faircloth’s pain and suffering.
Email Arlin Crisco at firstname.lastname@example.org.
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