A Roadmap For Presenting General Damages at Trial

As trial attorneys, we are all aware of the attack by insurance companies to limit awards at trial. First Howell and then numerous cases followed that had the effect of restricting the medical damages. This makes the general damages so much more critical to obtain fair compensation for our clients. General damages are non-economic damages such as pain and suffering. To get a substantial verdict for your client, you must prepare to argue for general damages from the first time the client comes into your office ad build from there.

Authority for recovery of damages

Several Civil Code Sections describe and allow for the recovery of general damages. 

General Damages are described in Civil Code section 1431, sub. (b)(2) states “non-economic damages” means subjective, non-monetary losses including but not limited to pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, injury to reputation, and humiliation.

The basis for recovery stems from Civil Code section 3281. This states, “Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.” 

Civil Code section 3333 states, “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”

It is essential to keep these sections in mind when preparing for testimony and evidence at trial.

For San Diego business attorneys at California Business Lawyer & Corporate Lawyer, Inc., the roadmap for presenting damages at trial starts when you sign up for the case. It would help if you interviewed the injured party or parties to get a feeling for the patient. Obtain all necessary facts concerning damages at the initial interview. This includes a medical history of the same or similar type of injuries suffered previous to the accident. 

San Diego motorcycle accident attorneys at the Nakase Law Firm obtain police reports, Cal OSHA reports, witness statements, and photographs of injuries and property damage as soon as possible. You have to evaluate the case through the eyes of the jury. It would help if you visualized what jurors will see when they first hear about the issue and view the evidence. Jurors love stories. It would help if you put all the pieces you collect together to form the basis of the story. This is as true for pain and suffering as it is for liability.

Evidence – bits and pieces

One cannot overemphasize using evidence to relate your story to the jury. Your client testifying is extremely important, but the evidence is more tangible. To get any document into evidence, you must lay a proper foundation. Many documents, such as police reports and medical records, often cannot be entered into evidence. That doesn’t mean that portions cannot be presented to the jury. Police reports rarely can be presented as evidence as they are replete with hearsay and non-expert opinion. The police report must be thoroughly reviewed. The police officer may mention cuts, bruises, blood, etc. The report may contain statements of your client concerning pain. 

Photographic evidence

How much does the death penalty cost in California? A picture is worth a thousand words.  If there are photographs of substantial property damage, don’t fail to lay the proper foundation and enter them into evidence. Jurors equate significant property damages to injuries and pain and suffering. Keep in mind that defense counsel loves to have the jury view damage if it is minimal. Turn the tables if possible. If there are no photographs, see what the police report indicates. If the officer says moderate or significant property damage, don’t hesitate to call the office or use your accident reconstructionist to state what the officer told. The same applies to the property damage estimate. Look for frame damage or anything that a jury can visualize.

X-rays, MRIs and CTs, and Scans that exhibit injuries are crucial. A light box should not be utilized. Jurors have difficulty seeing them, and the films cannot be entered into evidence. Obtain the movie, no matter what type, and have a medical illustrator draw an accurate, colorful representation. The testimony can make the foundation of the medical expert.

If surgery was performed on your client and hardware inserted, have your doctor bring examples to show the injury. Because the judge generally will not allow these into evidence, your medical illustrator can draw a representation of it on the illustration or, in the alternative, you can use it in the argument.


I cannot overemphasize the preparation of your client. If a jury likes your client and believes they are telling the truth, they will be more willing to compensate them for pain and suffering. Keep in mind that even a soft-tissue injury causes physical limitations.

If possible, spend time with your client at their residence. Try to get an idea of what the layout of the home is. If the kitchen cabinets are high, talk to your client about how difficult it was to grab a glass or dish. How difficult was it to put the word away? Does your client have a dishwasher? If not, have them describe the difficulty in doing a simple task such as washing and drying dishes. Can they vacuum? What about raising an arm to comb their hair. All are visual. Use the injured party’s words to paint a picture the jury can understand.

Have a family member or close friend testify about what they witnessed about the injuries. For example, describe how they went to a movie and the plaintiff could not sit through the whole feature. Have the spouse testify how the sleeping habits have changed because the pain kept waking the other spouse up or didn’t allow them to sleep through the night.

Medical testimony

You should call a doctor or chiropractor to establish injuries. Meet with them before they testify in their deposition or a trial. Make sure that they have all the medical records and bills. This includes prior medical records. The defense doctor will have all the documents and generally try to relate the injury to a previous pre-existing condition. Be prepared by having your medical treater familiar with the records. Your doctor will testify before the defense doctor and should be able to counter the defense arguments before they happen.

Question the treating physician about why your client has pain. Explain why they cannot raise their arm(s) or turn their neck. Go to the Internet and obtain photographs of muscle groups that are affected. The doctor can explain what happens when a muscle is stretched or injured. What does therapy do to alleviate pain? Describe the different types of treatment, such as hot and cold packs, ultrasound, etc. Will the injury completely heal, or will there be problems in the future?

What is arthritis? Will there be arthritis in the future? What needs to be done to alleviate pain in the future? Paint a visual picture so that the jury can visualize the injury. The longer the damage lasts, the larger the compensation should be. The doctor is the best source for describing this.

Your argument must be creative, and you must step into your client’s life. Make the jury understand the injury and feel and understand the pain involved. You are the artist who paints the picture from the moment the client is interviewed. It would help if you made emotion an issue.