Graphics Help Lawyer Show Client That, Sometimes, Losing Is Winning

by Jonathan Carey, Mar. 17, 2015

Trial lawyers hate to lose, and employment defense attorney Tom Hockel of Kelly, Hockel & Klein in San Francisco is no exception. Usually, Tom and his employment defense firm only consider it a victory when the plaintiff fails to recover any damages at trial. However, after a jury awarded damages to the plaintiff in a recent trial, the firm and their client were elated. Why?

This was Tom’s second time trying the case, which arose out of the termination of the plaintiff’s employment. In the first trial, a jury awarded more than $8 million in damages to the plaintiff, who had earned around $34,000 per year. After Tom’s firm appealed, the appellate court upheld liability on two claims (including wrongful termination) but reversed the damages award entirely and ordered a retrial on the issue of compensatory damages.

The plaintiff’s lawyer was undaunted by the reversal on appeal. In fact, he boasted in the media that his client would recover an even higher award in the new trial. The plaintiff’s lawyer was confident that he would win the second trial as easily as he had won the first one. He refused to negotiate and rejected defendant’s pre-trial settlement offer of $1,000,000.

With liability set and settlement talks dead on arrival, Tom’s best hope was to minimize the damages amount in the new trial. As Tom prepared for the retrial, he was determined to overcome his client’s vulnerable position. He looked for potential trial strategies that might help neutralize his opponent, a seasoned plaintiffs’ attorney who had won many trials with large awards, including the largest employment-related verdict ever in Los Angeles County. Most importantly, he knew he had to present his case in a simple, common sense manner that would enable the jury to see his client as the reasonable party.

LegalVision began working with Tom months before the retrial. Although we had created many trial graphics for the initial trial years ago, Tom wanted to start from scratch for the retrial. With liability no longer at issue, we worked with him to support his plan to present his client’s damages case in a way that might help minimize the award.

Part of Tom’s strategy was to show the jury how his client’s calculations of damages were more reasonable than the plaintiff’s demands. We worked with him to develop a series of charts to help the jury properly assess the true loss caused by the defendant – and to show how Tom’s client was willing to compensate the plaintiff fairly, but not excessively. Because we had months to finalize the charts, Tom could practice and fine-tune the content and his delivery. Even before opening statement, he already had his closing charts in hand. He had his roadmap for the trial set.

During trial, the plaintiff’s lawyer proposed that the jury calculate economic damages as if the 49-year-old plaintiff would never work again, despite the reality that she had held three different jobs since her termination. Therefore, the goal of this first chart was to encourage the jury to consider the plaintiff’s actual earnings after termination in their calculation of damages and to help them assess whether the termination had caused long-term earnings impairment.

Chart 1: Plaintiff’s Earnings

To help counter the plaintiff’s narrative that she was irreparably damaged from her termination, LegalVision created a second closing chart entitled “Plaintiff Bounced Back Quickly.” The chart tracked the medical evidence and showed the jury that the plaintiff’s termination in fact had caused only short-term impairment. The jury could see for themselves that the medical evidence objectively showed the plaintiff recovering in a matter of months, not years or decades.

Chart 2: Plaintiff Bounced Back Quickly

In a third chart, we helped Tom neutralize the plaintiff’s economist. Tom anticipated that the plaintiff’s lawyer’s confidence would lead him to ask for even more money in the second trial than he did in the first trial. He also knew that the plaintiff’s lawyer would use the same hired-gun economist he used in the first trial. Tom’s goal was to show the jury that the plaintiff’s expert was merely following the attorney’s orders and parroting whatever numbers the lawyer suggested. LegalVision summarized and compared the expert’s drastically different damages calculations in the two trials, thereby displaying that the plaintiff’s calculations were arbitrary and should be disregarded.

Chart 3: Experts Change Opinions

Tom’s approach seemed to stymie his opponent and resonate with the jury. While his opponent struggled and became visibly frustrated, Tom remained calm and reasonable. The plaintiff’s lawyer never adapted and lost the jury early in the case. No matter what the plaintiff and her lawyer did to try to incite the jury to punish the defendant, Tom calmly stuck to his plan to be unflappable and reasonable. Through the graphics we prepared and his personal demeanor, Tom enabled the jury to see that his client had acted reasonably, did everything possible to fix a bad situation quickly, and was willing to compensate the plaintiff fairly for her damages from the termination.

The jury never fell for the plaintiff’s exaggerated version of the case and instead focused on how to reasonably compensate the plaintiff. In the end, the jury relied on our charts showing Tom’s damage calculations and awarded the plaintiff almost exactly what Tom asked them to award her, which was a tiny fraction of the amount awarded in the first trial. After years of hard work and perseverance, Tom and his client were able to breathe a sigh of relief and celebrate the “loss.”

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