Summarizing Personal Injury Damages

Includes request for admissions and special damages list.

by Leonard Bucklin

Excerpted from Building Trial Notebooks

This is the place for a summary, not a long description.

When the judge asks, “What are your damages?” When the jury needs to know, “What is the rational way of adding up the economic damages from loss of the contract to sell 1K Widgets?” When the mediator asks, “What are your out-of-pocket costs?” When your defendant’s insurer questions, “What are plaintiff’s out-of-pocket expenses?” “How long was the plaintiff in the hospital?” “What are the injuries that were diagnosed?” Those are the times you must be able to respond with a bulleted list which is short, direct, categorized, and dollar-specific.

We provide a form to summarize damages in a personal injury case. Begin completing the form as soon as the case starts. It will help you determine:

• How much the case is worth to you as an attorney, and how much in resources you can afford to spend on the case.

• If there are holes in what should be known about damages. Your staff can work on filling gaps while you are out of the office.

§13.1   Tip and Form: Medical Bills

In the typical bodily injury case the defense puts in a general denial of everything you pleaded. That means that at trial you will have to prove the medical treatment was reasonable, that it was caused by the accident, and that the charges were reasonable. Do not be caught flat-footed at trial by an objection to introduction of the medical bills on the ground that they have not had the necessary foundation of testimony on what was reasonably necessary for medical treatment.

As soon as the defense gives you a general denial answer, including a denial of your pleading of medical expenses, do two things.

1. Immediately send the defense a nice letter enclosing a medical authorization from your client for them to inspect medical records. Opposing counsel will get it sooner or later, so give it to them right away to justify step 2 below.

2. Sixty days later send out the following Request for Admissions.

We place this Request for Admissions Re Medical Expense behind the “Damages List” tab so that you will handle it during the first ninety days of the litigation. That is the crucial time period for you to establish that you will take no nonsense from the defense.

The Request for Admissions re Medical Expense mentions at length the consequences of failure to admit, including that a denial questions the professional conduct of the medical provider. This is first to make the defense attorney think seriously about her game of denying everything you pleaded.

Second, if the defense attorney does deny the requests, your treating doctors will become wonderfully cooperative after you tell them that the nasty guy on the other side is questioning their medical ethics. Suddenly doctors who would not talk to you about the case are willing to appear at trial to say how badly your client was hurt, and why his patient had to endure both the injuries and the expense of treatment.

If the defense admits the items, make a large posterboard of the admissions, signed by the defense attorney. Do as we do in the form — make the actual place for them to sign a separate page so it is easy to copy and enlarge separately. Offer the enlarged-size admission in evidence in chambers before opening statement. Then show the enlarged admission to the jury at the beginning of the case to establish that the opposition has no defense to the damages you will be seeking at the close of the case.

§13.2   Form: Plaintiff’s Request for Admissions Re Medical Expenses

Download the Plaintiff's Request for Admissions Re Medical Expenses in Microsoft Word.

§13.3   Instructions to Staff

Read this instruction sheet. Then place this instruction sheet as the last item in this tab section. Throw this instruction sheet away after everyone is so familiar with this section that you no longer need this instruction sheet.

If this is a personal injury case, insert a double-sided copy of the FORM: PERSONAL INJURY SPECIAL DAMAGES LIST. If the form has insufficient room, type a similar list and use that instead.

For other types of cases make your own summary list of the out-of-pocket (i.e., special) damages. List all special damages in a short form with a dollar amount. Group items in categories. For example, in a fire case, you may have such categories as Building Damage, Personal Property Damage, Temporary Living Expenses, Site Clean Up, Architect’s Fees, Construction Contract, etc. The important point is to have a list, in short form, with specific categories, items and dollar amounts.

Also place in this section any summaries and other compact information which allow convenient and correct references to the amount and type of general damages.

§13.4   Form: Personal Injury Special Damages List

Download the Personal Injury Special Damages List in Microsoft Word.

Leonard Bucklin has been elected a Fellow of the International Academy of Trial Lawyers, which attempts to identify the top 500 trial lawyers in the U.S. He served as a Director of the Academy from 1990 to 1996. He is also a member of the Million-Dollar Advocate's Forum, which is limited to plaintiffs’ attorneys who have won million or multi-million dollar verdicts, awards, and settlements.

   On the other side of the table, Mr. Bucklin has been placed in Best's Directory of Recommended Insurance Attorneys as a result of superior defense work and reasonable fees for over 35 insurers. His legal experience spans 40 years, and has been balanced between commercial and personal work, between office practice and litigation, and between plaintiff and defense work. He is the author of Building Trial Notebooks, from which this article is excerpted.