Massachusetts Injury Lawyer Practice Update: January 2011

Some Good News and Some Bad News from the Massachusetts Appeals Courts on c. 93A Damages
By David W. White

One of the most difficult issues for the courts with regard to G.L. c. 93A and c. 176D insurance bad faith cases is the calculation of damages. In some circumstances, the courts have not hesitated to affirm steep judgments for bad faith violations, even when the underlying claim was relatively small. But in other cases, the courts have chosen methods that have reduced the exposure to insurance companies.

Two important c. 93A damages cases were decided by the Appeals Court in 2010, and the results are troublingly inconsistent. The first case, Gore v. Arbella Mutual Insurance Company, 77 Mass.App.Ct. 518 (2010) concerned an automobile accident claim in which the insurance policy provided only $20,000 in coverage. The ultimate judgment in that case, after remand, will likely be over $2 million.

The court affirmed the underlying damages for the plaintiff on her direct claim. The court also ruled that there should be multiple damages based upon the claim assigned by the defendant driver to the plaintiff. This claim included a stipulated judgment, which the court considered to be a judgment for the purposes of G.L. c. 93A, § 9(3). It was a matter of first impression. The Supreme Judicial Court has denied further appellate review.

The other case was Rhodes v. AIG Domestic Claims, Inc., 78 Mass. Ap. Ct 299 (2010), which also arose from a motor vehicle accident. The trial of the underlying matter resulted in a judgment of nearly $11 million. In the c. 93A case, the Superior Court justice denied damages for the pre-trial conduct and awarded only loss-of-use damages for the post-trial conduct, which included a frivolous appeal.

The Appeals Court reversed the finding of the trial court on the damages for pre-trial conduct, but, in an unprecedented manner, limited the period of damages up to the point when a "low end" offer was finally made by the insurer. The court based the post-trial damages on loss of the use of the money instead of the existing judgment. Both aspect of the decision drew a vigorous dissent. A petition for further appellate review is now pending before the Supreme Judicial Court.

For a more detailed analysis of the two cases, please see the article.



Visual Persuasion
By Marc L. Breakstone

Jurors, like most people, learn more by looking than by listening or reading alone. People are four to ten times more likely to understand and recall facts that they see and hear than if they only hear the information. For this reason, trial lawyers should utilize visual evidence to reinforce every central evidentiary issue at trial. There is an old Chinese proverb that says, "Tell me, and I will forget. Show me, and I may remember. Involve me, and I will understand." The objective of demonstrative evidence and visual persuasion, generally, is to involve the jury in your case.

Any lawyer who has tried a case knows that trials are monotonous, courtrooms are dull, and lawyers can be soporific. Demonstrative evidence brings life into the courtroom. Blow-ups, representations, models, and computer simulations bring life, color, sound and feeling into the courtroom. Demonstrative evidence allows jurors to engage all of their senses as they grapple with the evidence in the case. Most people love to tinker with toys and inspect objects. The use of demonstrative evidence allows jurors to become more personally involved in the issues in your case.

There are a few simple rules for maximizing the impact of visual evidence. First, KISS (keep it simple stupid). Use visual evidence to represent concepts, not details. Like a PowerPoint slide, an effective piece of demonstrative evidence should represent no more than three key bullet points. If the impact of the item cannot be apprehended in a blink of the eye, it is probably too busy or too technical. Second, be selective about what you represent visually. Using too many visual exhibits may diminish the impact of your really important items. Avoid visual clutter. Generally speaking, "less is more."

Finally, carefully choreograph the introduction of the visual aid. Show it to your opponent and resolve any objections before you present it to a witness. If necessary, obtain a ruling from the court before you ask any questions of witnesses about it. This is particularly important for animations, which may require several levels of authentication. Jurors want TV and CSI, and an animation can satisfy that hunger. For some examples of animations we have used at trial, click here.

By definition, demonstrative evidence is any evidence which represents the original item or thing that is not in court. The foundation requirement is simple: a competent witness must testify that it is a "fair and accurate representation" of the original item. Although visual aids are generally considered "chalks" and not admitted into evidence, offer it as an exhibit.

My rule of thumb is that "everything is admissible, until someone objects, and someone else (in a black robe) agrees." If it is not admitted in evidence, have it marked for identification as a "chalk." See Aselbekian v. Mass. Turnpike Auth., 341 Mass. 398 (1960). Don't hesitate to refer to it in your closing.

Finally, if the jury requests it during deliberations, urge the court to exercise its discretion to allow the jury to receive it.



BWG Lawyers In The News

The lawyers at Breakstone, White & Gluck have been in the news over the last few weeks. David White discussed the changes in snow and ice law following the Papadopolous v. Target Corp. decision on FOX and WBZ. Marc Breakstone was featured on WBZ discussing the explosion at the Norfolk condominium complex which killed one worker and injured several others. Here are some of the stories:

David White on FOX-TV.
David White on FOX-TV

Marc Breakstone on WBZ-TV.
Marc Breakstone on WBZ


For more coverage, visit our news page

Massachusetts Injury Lawyer Blog
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