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In recent years, due to the tremendous effort of our enemies, non-economic damages have become perhaps the most difficult to obtain to fairly compensate the people who have been harmed by the defendant’s wrongful conduct. Noneconomic damages have been looked upon as a windfall or bonus for the people harmed. This article will address an approach to preparing and presenting non-economic damages.

Damages are the reason we are civil litigation attorney. No harm – no foul. If there has been no harm, then there is little reason to pursue the case. On the other hand, sometimes lawyers will take a case simply because the damages are large even though liability is slim to none. This can be a poor decision.

Case selection

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First and foremost, if we cannot listen to the person’s story, understand it, and say to ourselves That is wrong and something should be done about it,” we should strongly consider rejecting the case. As seen by employment attorneys and concern for what is right must always guide our case selection. Do not fall prey to the thought that even though the case has slim liability, the defendants will settle because the damages are so large.

Evaluate the case, from the beginning, through the eyes of the jury; Always look at what the jury of today will see when they hear the case. Do not evaluate it as what a lawyer thinks will satisfy elements of a cause of action. It is important to have evidence to satisfy the elements of a cause of action and to overcome motions for summary judgment but this is secondary’ to the story of the case.

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What does the person on the street think of the case? Who is the defendant? What did the defendant do and what emotions or feelings did the conduct of the defendant evoke? Anger, frustration, disappointment, fear, resentment, sympathy are all feelings that we should look at in evaluating both the defendant’s and the plaintiff’s conduct. What motivations were behind the defendant’s conduct? These are again reasons to do focus groups early and often. Sometimes it helps to do a focus group before even deciding to accept a case.


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In preparing the case, we must always be focused on what makes up the story of the case. Stories have guided human development, communication and fair-ness since the beginning of human existence. Watch and listen to conversations each day to learn what is most interesting and persuasive. Is it facts and figures over the sub-prime mortgage mess and how the Federal Reserve is planning to handle the crisis that captures your attention? Or is it a story of how fraud, deceit and a breach of trust led to the whole mess? Clearly an interesting story will capture attention and persuade much more than just facts and figures. We must constantly be discovering the story of the case. There are many excellent books on stories; for example, The Story Factor by Annette Simmons and Winning with Stories by Jim Perdue.

What is the non-economic damages story? How do we discover it? How do we tell it? When do we begin to tell it?

The general rule is you must spend time with the person or people who have been harmed. You cannot spend too much time with them. Take note that I say the “people” who have been harmed. Then research legal principals at crowd source lawyers.

This is much broader than just the person you represent. For example, the family of the person harmed has also felt the effects of the injury. The people at work have also been affected. Friends, too, have been affected. Spending time with these people will help you see the global effects of the injury.

Do not just call these people on the phone or have them come by your office.

Get out of the office. Enter into the life of the person you represent. See their life before the injury. Go to their work. Watch and talk to the coworkers. Go to their home. Sit in their favorite room. Go do the things they did before the injury. Take their children to school. Meet their children’s teachers. Your preparation by entering into their lives as they existed before the injury is only limited by your determination and imagination. See and live their lives before the injury.

You will discover that spending this time will help you to develop the narrative of who this person is and how this harm has affected their life.


Read CACI 3900 and 3905A. They are great starting points for building a non-economic damages case. The story you discover with the work outlined above and the focus group work are the most important first steps, but for purposes of giving the jury the logic to back up their emotional decision, these CACI instructions are golden.

Without going into a long explanation, it is well established that most, if not all, of our decisions are based on emotion that we justify through the use of logic. This is why so much time is spent on dis-covering and telling the story through the appropriate use of emotion. (The use of emotion is perhaps another article.)

CACI 3900 provides:

The amount of damages MUST include an award for each item of HARM that was caused by the defendant’s wrongful conduct, even if the harm could not have been anticipated.

David Ball, a national trial consultant who has written a great book on damages, could not have written this any better.

Jury instruction should be read to the jury panel, preferably by the judge before jury selection. It conveys to the jury through the power of judicial author.

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