The late Moe Levine had a better idea. He said that the way to get a million dollar verdict is to have a million dollar case.
Just what is a million dollar personal injury case? The best approach may be to consider the case backwards. In other words, look at the damages first.
The plaintiff's life must have been devastated by the injury. There has to be either brain damage, loss of sight, paralysis or some smaller injury that affects the particular plaintiff's life drastically.
Damages are awarded for "pain and suffering". "Pain " and "suffering" are not the same thing. Pain is the familiar entity that is sometimes helped by analgesic medicine. It is the sensory discomfort that results directly from injury to some physical part. It always diminishes and often disappears in time. It is, however, that element of damages that is most easily translatable into dollars and cents in the verdict. Great pain necessarily begets a large verdict.
Suffering is the more important and more valuable element. Suffering is what has happened to the plaintiff's life as a result of the injury. It is the loss of the normal attributes of life that every human being has a right to enjoy. A person suffers when he or she cannot walk, talk, see, play, dance, go to school, fall in love, work, marry, have children, look nice, use the bathroom or do any of the things that might sometimes be considered as problems but are the normal aspects of life. Fear is suffering. The depression that follows terrible injury and so often brings the plaintiff to thoughts or attempts at suicide is suffering.
Suffering endures. A young woman who is crippled from age 14 to age 24 when she is cured will bear scars for the rest of her life from not having been able to finish school, have a social life, marry, and have children during those important early adult years.
An injury that might be slight to most people can destroy the life of a person in a particular field. A surgeon whose only injury is the inability to focus his eyes at short distances will endure suffering that is amplified by the years and years of education and preparation to practice his art and by the emptiness left by the loss of the most important aspect of his life, not to mention lost income.
Lost income is that aspect of many personal injury cases that gives the attorney the opportunity to bring out concrete proof during the trial that brings the case into the million dollar category. Ordinarily it is only in the closing argument that amounts of money can be discussed. If, however, the plaintiff has any work history or there is a reasonable probability that the plaintiff would have worked but for the injury, it is possible to prove the enormous amounts that would have been earned over the remainder of the working life expectancy. After the proper foundation has been laid an economist is usually called to testify to the total income that would have been earned, the inflationary expectations regarding income and the discounted present value. Even if the plaintiff has never worked and the jury may infer that he or she would have worked, an economist may be asked to project what the lost income would have been if the plaintiff had worked at the minimum wage and at some jobs that such a person might reasonably have been expected to assume.
Given good damages you must also have good liability for the megaverdict. The more definite the liability, the more likely the jury is to award the full value of damages. Conversely, if liability is weak the jurors will begin deliberation on an uncertain footing. The compromise and argument that are spent in arriving at a liability determination will deplete the enthusiasm for fully compensating the plaintiff for the damages.
Good liability means more than just putting in a prima facie case. Good liability means knocking the defendant down and then stamping on him so badly that he can't get up and doing it in such a way that the jury does not feel sorry for the defendant. It is that factor that makes the jury so angry at the defendant that they cannot wait to punish him. In a malpractice case that can be done by proving fraud by the defendant that not only was designed to protect himself from suit but had the result of endangering the plaintiff's life and frustrating further treatment. In an accident case the defendant's wanton and reckless actions are such proof.
While plaintiffs must be very careful not to introduce evidence that is so inflammatory that it becomes reversible error, testimony showing how terribly the defendant acted is never reversible. It is good inflammatory prejudicial proof that leads to the million dollar verdict.
Two "erb's palsy" cases tried by the author in which the juries arrived at vastly different verdicts provide good illustrations. Erb's palsy is a paralysis and lack of growth of the arm that results when a child is too large for its mother's birth canal and the physician delivering the baby pulls and twists the head. The process breaks the nerves that supply the arm.
In the first case the doctor had delivered the child's mother and had treated her and her family for over thirty years without charging a fee. The doctor had died before the lawsuit was instituted and the only evidence upon which liability could be based was the single statement, "shoulder dystocia", in the hospital record. This means that the child's shoulder got stuck. The jury awarded $250,000.
In the second case there was proof that the doctor completely ignored the mother's family history of diabetes and one of his own tests that showed that the mother herself became diabetic during pregnancy. Maternal diabetes causes the child to grow very large. He then took no note of the enormous size of the mother. The child was 11 pounds at birth. During the delivery there was testimony that the doctor pulled and twisted the child's head until his arms were so tired that he had to stop. Another doctor who was in the vicinity of the delivery room testified that the defendant walked away from the delivery while the child's head was partially delivered and refused to proceed. The second doctor testified that it was apparent to him that the child was dying so he came in, did the proper maneuver to deliver the child, delivered it and was out of the delivery room in less than two minutes. The jury was so incensed at the defendant's multiple errors including leaving the child to die that they awarded $2,500,000.
