Defining Damages

By Camille Godwin

Duty, breach, causation, and damages – all four are elements of a negligence claim, but beyond confirming that the damages meet a minimum threshold requirement, busy lawyers too often afford short shrift to the process of developing damages evidence in the earliest stages of case intake and preparation. Much more energy, understandably, is focused on getting the liability ducks in a row. After all, the jury will never debate damages if they don’t assess liability.

However, investing time and energy early in the case can pay off in big dividends throughout pretrial negotiations, mediation, litigation, and trial presentation. An early analysis of damages can also dramatically reduce the time needed later for obtaining needed records, responding efficiently to discovery requests, and preparing for client depositions and mediation. This article suggests two powerful, but readily accessible tools that can get the damages analysis off to a fast start – jury instructions and a simple dictionary.

As with any powerful tools, it is important to plan your work and devote the time and labor needed to let the tools do their jobs. First and foremost, don’t underestimate the importance of thorough, detailed initial and follow-up interviews of your clients, family members and witnesses. Ascertain the fullest possible extent of physical and mental damages from the very first interview. Whether the interview is conducted by the lawyer or by trained staff, a plan to obtain the needed information is key. The standard jury instructions provide the templates for damages interviews in any type of case.

As an example, consider the standard instruction on loss of consortium:

A married person has a right to recover for the loss of consortium, sometimes called loss of services, of the spouse. You should be careful to remember that services the law refers to are not only household labor but also society, companionship, affection, and all matters of value arising from marriage. There does not have to be any direct evidence of their value, but the measure of damages is their reasonable value, as determined by the enlightened conscience of impartial jurors taking into consideration the nature of the services and all the circumstances of the case.” Georgia Suggested Pattern Jury Instructions – Civil 66.400 Tort Damages; Consortium

Now, at first blush, and notwithstanding all the seemingly excess verbiage in this instruction, it is extremely vague. How do you elicit the scope of such damages from your new client? While it may not be too difficult to prepare a checklist of items that constitute “household labor,” what about the rest of the elements? What is society? Affection? Consortium? Are they the same? How are they different?

This is where a dictionary supercharges the interview. Before sitting down with the client, dust off a favorite lexicon (or let google find one for you) and meditate on the meanings and usages of the words.

For example, a few minutes spent on the website for Merriam-Webster1 provided the following information about several key words in the jury instruction:


An agreement, combination, or group formed to undertake an enterprise beyond the resources of any one member.

Legal right of one spouse to the company, affection, and assistance of and to sexual relations with the other.


Help, use, benefit

Contribution to the welfare of others

Useful labor that does not produce a tangible commodity


Friendly or intimate intercourse

Feeling of closeness and friendship that exists between companions

Voluntary association of individuals for common ends

Synonyms: brotherhood, club, consortium, council, fellowship, fraternity, association

Related words: collective, commune, community, cooperative, alliance, partnership, group, circle, clan, clique, crew, squad, team, fold, gang, camaraderie, company; amity, benevolence, friendship, rapport, concord, harmony, affinity, chumminess, familiarity, inseparability, intimacy, nearness, affection, devotion, fondness, love

Antonyms: forlornness, loneliness


Feeling of liking and caring for someone or something

Tender attachment

Feeling of strong or constant regard for and dedication to someone

Synonyms: love, attachment, devotedness, fondness, passion

Related words: fancy, favor, like, partiality, preference, relish, taste, craving, crush, desire, infatuation, longing, lust, yearning, ardor, eagerness, enthusiasm, fervor, zeal, appreciation, esteem, estimation, regard, respect, adoration, adulation, allegiance, faithfulness, fidelity, loyalty, steadfastness

Antonyms: allergy, animosity, antagonism, antipathy, aversion, disfavor, dislike, enmity, hostility, abhorrence, disgust, repugnance, repulsion, revulsion, misanthropy, loathing, rancor, detachment, unconcern

Use the definitions, as well as synonyms, related words, and even the antonyms to compile an outline of discussion items during the interview for this element of damages, but avoid letting the conversation devolve to simply checking items off the list. No doubt some of the terms will lead the client (and other witnesses) to recall and recount very specific and unique experiences and examples that can make their damages come alive. Engage actively with clients and witnesses and journey with them through their experiences to fully reveal the nature and extent of the harm suffered. This process works well for any type of damages issues. Simply locate the applicable instruction, study up on the words and meanings, and use that information to explore and document the full panoply of injuries and damages.

Once a client or witness gets involved and motivated in telling their stories, information overload can be a problem. Plan for this by maintaining a written outline to serve as a roadmap that will limit rabbit-trail excursions. When asking about physical injuries, the outline can be as simple as encouraging the client or witness to begin with a specific body part and to exhaust all they can recall about pain, disfigurement, or functional limitations related to that part before moving to the next.

Once you’ve gathered the universe of damages, you must now play devil’s advocate and consider the sources of pain or stress which could cause all or some of the symptoms but which are not incident-related. How do you do this early in the case without incurring significant costs in records retrieval and review? One very quick way to do this for physical or mental injuries without necessarily going through the expense of tracking down tons of medical records is to obtain a record of prescriptions from your client’s pharmacies. Often, people may see many different providers, but will use the same pharmacy, and most pharmacies can and will pull the needed information on client request very quickly. In fact, many of the larger pharmacies will allow patients to submit queries on their websites or will allow them to access the information through their website accounts.

Another easy source is a summary of the explanations of benefits (“EOB’s”) from your client’s insurers, including government sources like Medicaid and Medicare. These materials will likely give you a well-organized, chronological listing of the most serious health issues and will be an excellent guide in your interviews. Furthermore, this type of information is typically sought very early by the defense and getting the information beforehand can only help you maintain the advantage.

Active and energetic interviews tend to result in substantial, and often unanticipated amounts of information. Prepare for this by developing intake forms suitable for this type of data collection, audio/video recording the interviews, and/or employing a staff member to be the primary note-taker, leaving the interviewer free to focus on the communication.

The added time and the personal energy invested in early identification, exploration and documentation of damages will pay off exponentially in tangible and intangible ways. Most certainly, early and probing interviews will assist in identifying significant worthy cases, as well as in spotting cases that may not play out as well as they sounded on the initial intake.

Finally, don’t put the dictionary away after the interviews. Remember that vague and seemingly repetitive jury instruction on consortium? Don’t just leave the jury to figure out what it means on their own. Use that dictionary to explain to them that an “enlightened conscience” is one which is “based on a full comprehension of the problems involved” and “freed from ignorance and misinformation.”6 If you’ve given them clear, complete, and specific information which defines and describes your client’s experience, you have supplied them with the tools they need to award the value deserved.

About the Author

Camille Godwin has more than twenty years of experience litigating a variety of issues and cases, including cases involving multi-state civil rights, inadequate security, products liability, toxic torts, medical malpractice, nursing home abuse, and commercial disputes. Through these cases, Camille developed an understanding of the complicated corporate structures, financial arrangements and organizational agreements that typify much of the health care industry and other business sectors. Camille is licensed to practice in Georgia, Florida, Tennessee, Texas, Wisconsin, North Carolina, Kentucky, Washington, and South Carolina.



2, accessed 09/01/17.

3, accessed 09/01/17.

4, accessed 09/01/17.

5, accessed 09/01/17.

6, accessed 09/01/17.


A dictionary supercharges the interview. Before sitting down with the
client, dust off a favorite lexicon (or let Google find one for you) and meditate on the meanings and usages of the words.

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