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Judge and Gavel
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  • Richard L. Duquette

Valuing the Loss of a Bicycling Lifestyle - Part 2 of 2

Damages in a bicycle injury case are broken up into two categories: Economic damages, and Non-Economic damages. (Note: these categories do not include Punitive Damages for road rage or drunk/drugged driving.)

Economic damages are hard losses like a life care plan, lost earnings, and medical bills, which must be paid back to you or your doctors. These are alternatively described as “out of pocket losses.” These damages are called special damages because they are easily quantified and highly specific in nature. They are proven by things like actual medical bills and verified lost earnings.

Non-Economic damages are far more extensive. They are the human losses. This includes your lost enjoyment of bicycling, pain and suffering, psychological damages, and the many other ways that an injury can detrimentally affect someone’s quality of life. CACI § 3905A lists examples that include “physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress.” This can involve a wide variety of mental, emotional, and physical deficits and can affect plaintiff’s enjoyment of an equally wide variety of their previous activities.

….Continued from part 1

  1. Ask the Jurors to write the end of this story. As famous trial lawyer Moe Levine says, “We should look at the whole person. How was it affected. This is not to gain sympathy, but empathy (understanding). The emphasis is not on how bad their life is now. The emphasis is on the good things about their life that they can no longer enjoy. It is not mere grief, but objective losses that the law compensates. Tell the jurors they must stand up for the bicyclist’s loss. That’s why we’re all here. It‘s up to them.

  2. What’s the life expectancy of the loss? When the case is over and the courtroom doors close, should the bicyclist just suck it up? Should the bicyclist just pick another sport? Ask the jurors to discuss it in deliberations, don’t shy away from demanding a “full cup of justice”. Explain, it’s a lawyer’s right and duty to ask for money for the Bicyclist’s loss, even if he/she gets a fair percentage of it due to his time, talent, training, and risk of working on a contingency (no recovery, no fee) against powerful forces (insurance companies). How else can we achieve justice as a trial lawyer? We are greedy…for Justice, even if unpopular to some. We don’t want sympathy. A lifetime is a long time. How much is six months of bad pain and 50 months of weekly pain worth?

  3. We don’t want to punish! We’re not here for sympathy or to punish the defendant. To punish is the purpose of punitive damages, which is different than non-economic loss of enjoyment of bicycling. We’re not here to focus on the defendant’s conduct, except to the extent that it was negligent. We’re here to focus on the plaintiff’s losses. It’s about compensation and responsibility. We don’t have a fixed damages chart either, or a scale. Nor do we use a stock formula, such as three times the medical bills. We are here for a fair and impartial jury verdict, mediation, or arbitration award, to honor the loss of the bicyclist’s enjoyment of life, and all non-economic damages.

  4. Non-Economic Damages Categories: Also known as “heads of damages,” the list below is a helpful (but not exhaustive) guide to some of the specific ways of understanding non-economic damages. Each case is different, and not every single item applies to every single client. But this is a useful checklist to start the analysis and begin planning how to tell the story.

    1. Loss of enjoyment of life.

    2. Freedom from physical pain.

    3. Rear of riding a bicycle again with the same joy.

    4. Anxiety specific to your health, fitness, bills, recovery.

    5. Physical impairment.

    6. Mental suffering, i.e. unpleasantness, avoidance.

    7. Inconvenience.

    8. Grief, sorrow, sadness, or bottled up dysfunction.

    9. Shame to fall behind on bills.

    10. Embarrassment because you’re being talked about or looked at differently.

    11. Anger.Emotional distress.

  1. What’s a fair monetary trade for these losses? Is it really a fair trade or a discount? Has the defendant really “accepted full responsibility” for negligence and full damages?

In sum, hiring an experienced bicycle injury trial lawyer, recommended by others, will help tell your story and recover the full value of your harms whether its before an insurance adjuster, mediator, arbitrator, or jury of your peers. Discount lawyers should be viewed with caution.

Ride safe! Ride strong!

Credit: Gerry Spence Trial Lawyers College and Trial Lawyer colleagues throughout the USA.

CACI – California Civil Jury Instructions

©Richard L. Duquette, Esq. All rights reserved 2018 – LEGAL ADVERTISING * 760-730-0500 * Podcast: Bicycling and The Law

The information in this article is for general information purposes only. The focus of this article is on California Law. You should contact an attorney in your state for case specific advice, as details of the law and procedural requirements vary from state to state. Nothing in this article should be taken as legal advice for any individual case or situation. This information is not intended to create an attorney-client relationship; and the receipt, reading, listening, or viewing of this content shall not constitute an attorney-client relationship. Nothing in this article shall be construed as a warrant, promise, or guarantee about the outcome of your case or any other matter. This information may contain personal impressions or statements of opinion on a subject that do not apply in your case. Further, statements of law reflect the current state of the law at the time of writing and/or recording, and may not reflect subsequent changes in the law.


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