Arguing non-economic damages such as pain and suffering in a case that involves a serious, but not necessarily catastrophic injury can be difficult. Framing the injury so that jurors understand its severity while ensuring jurors don’t feel that the loss has been exaggerated is key to setting up the best possible award. And in the latest Trial Technique Spotlight, Shane Read, one of the country’s preeminent trial consultants, spotlights how Bethany Schneider powerfully framed a non-catastrophic traumatic brain injury to set up a $5.5 million total verdict.
Max Laguerre contends he suffered a traumatic brain injury that left him with headaches, vision problems, and a slate of cognitive impairments when he was hit by a pipe that fell from a hotel’s fourth-floor pool deck while the property underwent renovations.
Schneider, of Atlanta’s Schneider Injury Law, saved her closing on damages for her rebuttal, allowing her to counter-punch the defense’s argument on the issue. And in that rebuttal, she frames the defense’s suggestion of a $500,000 award, if jurors found the defendant contractor liable, as seeking a “discount.”
Read says that term carries a powerful connotation. “She gives that metaphor [of a discount] to the jury to make them angry,” Read says. “She argues that the defense attorney has really consciously disregarded the plaintiff’s pain by putting such a low number on it.”
And in supporting her own damages argument, Read says Schneider’s analogy of the fallout from a brain injury to a dripping faucet, complete with both an image of the faucet and an accompanying sound effect that echoed through the courtroom as a backdrop to that portion of her argument, was masterful.
Watch more of CVN's Trial Technique Spotlight, with Shane Read
“The jury has this sound of the dripping water, which reinforces Ms. Schneider’s point that the drip, after drip, after drip becomes torture,” Read says. “That’s just brilliant.”
With that fresh in jurors’ minds, Schneider follows up by asking jurors to imagine a want-ad that would pay someone $10 million if they accepted all of the fallout Laguerre suffers because of the injury. “Only a fool would respond to that [ad],” Schneider said, “when there are no coffee breaks, no vacation days, not a minute off.”
“This shows the importance of imagery and metaphors,” Read says, noting jurors handed down a roughly $5.5 million total verdict in the 2019 trial, which included $5 million in compensatories and more than $500,000 in punitives.
Read’s analysis is the latest in CVN’s ongoing series, Trial Technique Spotlight, with Shane Read. Read is a nationally recognized trial consultant and award-winning author who has helped thousands of lawyers transform their deposition, trial, and oral advocacy skills through in-house training programs, one-on-one coaching, and keynote speeches. And in each episode of Trial Technique Spotlight, he uses CVN’s courtroom video to detail the techniques the nation’s top attorneys use, and how to best use them in your own cases.
Email Arlin Crisco at acrisco@cvn.com.
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Learn more about Shane Read and how he helps attorneys at ShaneRead.com.
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