Fully Acknowledging Human Damages with Randy Sorrels

Episode Notes

Transcript

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Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host, Rocky Dhir.

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Rocky Dhir: Hi, and welcome to the State Bar of Texas Podcast. Sometimes we got to get back to basics because the basics may not be as basic as we thought basically. The October 2022 issue of the Texas Bar Journal features an op-ed titled “Fully Acknowledging Human Damages.” It is what’s below the surface that matters. The author, Randy Sorrels is a Past, President of the State Bar of Texas, a specialist in personal injury law and the 2022 TEX-ABOTA Trial Lawyer of the Year. In case you’re wondering, TEX-ABOTA is the Texas Wing of the American Board of Trial Advocates. We should listen then when Randy reminds us about the full extent of tort damages and how we as lawyers can appreciate, acknowledge, and adjudicate damages. With all due respect to Randy, don’t we already address damages and tort litigation? How is this article presenting us with anything new? Well, let’s ask Randy and find out. Randy Sorrels, welcome to the podcast.

Randy Sorrels: Thank you, thanks for having me.

Rocky Dhir: Absolutely, so you know I appreciate you taking time out of your busy schedule. I know you’ve got a lot of got a lot of litigation you’re keeping yourself busy, but let’s just cut to the chase. Like why are we talking about damages after all this time? That seems like something we all learned in law school. So, walk us through that if you would.

Randy Sorrels: Well, I think non-economic damages is kind of the focus of this article because it appears during COVID that jurors are understanding better what non-economic damages mean. They have been isolated. They have had their issues, physical, and emotional issues. And frankly, I think jurors are starting to truly render verdicts consistent with what the injured victim has experienced. 

Rocky Dhir: Well, it’s interesting too because you’ve mentioned COVID in the article which I thought was fascinating. I never personally and look I’m not the brightest bulb in the chandelier but I had not made the connection between COVID and non-economic damages. Is there some kind of hard data to back that up? I mean are there surveys or something else that kind of gives us an insight into that link?

Randy Sorrels: I’m not aware of any hard data, but there’s a lot of talk at the courthouses, across Texas that jurors who used to be hesitant to give damages or physical pain and mental anguish are more ready to understand those injuries suffered by the plaintiff and then award more commensurate damages.

Rocky Dhir: So, let’s maybe start from the basics. What prompted you to write this particular article? There’s a lot of things you could have written about, but you chose non-economic damages. What was going through your head when you decided this was the article you were going to submit?

Randy Sorrels: There was a couple of Things. Number one, the non-economic damages awards we’ve seen over the last couple of years have in fact increased. For decades, jurors would consistently just ignore the people’s complaints on physical pain, mental anguish, impairment, disfigurement and now, we’re saying realization that jurors can understand this. Importantly, the Texas Supreme Court maybe looking at these issues because as awards have gotten bigger, defense lawyers are now asking for the court to legislate from the bench in my opinion and lower those amounts. And so, my fairness argument is for decades, we need the plaintiff’s bar to not go to the court and say you need to order damages to be larger when we all know suffering occurred. And now, when we get to the arguments made by the defense teams, you know what’s good for the goose is good for the gander also. Let the jury system and in my case, I had three substantial verdicts here. In the last year and a half, we opened a new firm and people are asking me, you know, “What do you think the courts going to do?” and that’s a really big question.

Rocky Dhir: Okay. Well, that’s a very interesting point to talk on because Randy, I think you just threw down the gauntlet when it comes to plaintiff’s lawyers and defense lawyers. So, let’s take this opportunity to hear a quick word from our sponsor and then we’re going to be back with Randy Sorrels in just a moment.

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And we’re back. We’re back with Randy Sorrels. Talking about non-economic damages and Randy, before the ad break you had mentioned this dichotomy between the way defense lawyers and plaintiff’s lawyers are approaching this and if I’m summarizing it correctly, it’s effectively that sometimes defense lawyers are asking judges to as you put it legislate from the bench and reduce non-economic damages. And that plaintiff’s lawyers are not doing that when the shoe is on the other foot. Do you think there’s — if the damages are going up over time, the non-economic damages awards, do you see us maybe going through another round of legislative tort reform? Is that what’s around the corner?

Randy Sorrels: There’s discussion that there will be defense oriented groups that introduced legislation to put a cap on non-economic damages. There is a cap on non-economic damages and medical malpractice cases. So certainly, the legislature knows how to do that, but they passed that cap through in my opinion they generated a crisis that doctors were going to leave Texas if we didn’t have a cap on non-economic damages. That was in 2003.

Rocky Dhir: I remember.

Randy Sorrels: Yeah. And I don’t think they can generate a crisis for businesses leaving Texas because of our non-economic damages awards. Texas is a booming state and I think they’re going to have a more difficult time generating a crisis. So, we’ll see what happens in this next legislative session. The more concerning thing is the defense attack on non-economic damages through the court system. I gave you the example that we think the court system works. My wife and I, Alex Farias-Sorrels and I secured a 352.7-million-dollar jury verdict for an injured worker in October of 2021. The trial judge who sat through all the testimony was asked to remit by the defense team and he did. He remitted 117 million dollars. That’s how the system is designed to work. It’s a trial judge who hears the witnesses, sees the credibility, reviews the documents. If the jury, if he feels or she feels it’s too high, then they can go through a remittitur process. I think what the defense bar is now doing is saying. “Well, if the trial judge doesn’t go far enough then, let’s give the Court of Appeals Justices or the Supreme Court judge justices a new standard to lower them even more.”

Rocky Dhir: Okay, so let’s maybe step back for a second because there’s a lot to unpack with this. This is — honestly, when I first saw that we’re going to be talking about damages, I thought “what’s there to talk about?” And honestly, Randy, you’ve opened it up. There’s a lot here that we need to unpack. What are you hoping to accomplish with an article like this? You know, is there a message for plaintiff’s lawyers, defense lawyers, non-lawyers? I mean kind of walk us through what you want people to walk away with.

Randy Sorrels: Well, the article itself is really written to lawyers who seek to persuade juries by using some time-tested persuasive methods, and some newer methods to allow jurors to open up their minds with a better perspective, on what plaintiffs, injured plaintiffs in particular go through. The defense lawyers certainly can look at the article and may try to create some counter arguments or they may use it to go to their clients and say, “The reality is that jurors do believe.” Now that mental anguish damages, physical pain damages are real and they may award a just and righteous amount.

Rocky Dhir: Well, here’s something that I found kind of interesting. So, in the article you walked through the different stages of litigation and you make some very interesting points and we’ll talk about those, you know, sort of step by step. You know, talking to your clients, how you counsel the clients and then, you know, the roles of the lawyers, the closing arguments. You walked through the different stages of litigation. One thing that the article doesn’t really talk about and maybe we can talk about it here is the settlement process. You know, so what happens when you’re — so, in it, you talked about starting with the client, really going through what it’s like to live day to day with an injury even if the injuries are not apparent which I think is an excellent point, right? I mean the person looks fine when you, at first glance but you don’t understand what they’re living with.

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But then, when your counsel — when that client kind of gives you, the trial lawyer, the litany of their damages and says, “Here’s what I’m living with day-to-day and here’s what I need to compensate me”, then when you go to settlement and you’re trying to counsel that client to maybe settle for a lesser amount, how do you reconcile that? How do you reconcile the recognition of damages with this idea that it may be advantageous to settle those claims for an amount that is less than the full amount of those damages?

Randy Sorrels: Well, the biggest advantage to settlement for both sides is certainty and finality and, you know, on these cases that Alex and I have tried over the last year and a half. We have appeals and we have post-judgment briefing and, you know, that does not bring finality, that does not bring closure, that certainly does not help pay medical bills that our clients need to be paid. So, settlement is important, but the settlement numbers are affected by jury verdicts, and getting jury verdicts over the last couple of years by all of the plaintiff’s bar with higher numbers on non-economic damages allows insurance companies and those in the decision-making positions to better evaluate what a jury may do going forward, and those numbers I believe are going to be higher.

Rocky Dhir: I guess effectively, then, the question is certainty versus full compensation. Is that a fair reduction of the essential question?

Randy Sorrels: Very fair. I think when both sides are equally unhappy, that’s probably a good settlement.

Rocky Dhir: Yeah. And, you know, we’ve heard that. I guess — so, as plaintiff’s lawyers, what would you — what would you tell your fellow plaintiff’s lawyers when it comes to balancing that? Balancing the need for certainty with this desire to get full compensation for what the client and you as a lawyer feel are just non-economic damages?

Randy Sorrels: Well, I think from plaintiff’s lawyers’ standpoint, and we do this in our office all the time and we have some young lawyers and more experienced lawyers here, one of the things that people fall back on are, “Hey, what are the medical bills? How much in lost wages are there?”, and that’s not our paradigm anymore. It’s what are the injuries and how do those injuries affect someone’s lives — someone’s life because, for our clients, the medical bills are just a drop in the bucket, and that’s what the point of the article is. The iceberg, which is that in the article itself and the bar journal, upcoming bar journal, itself shows 10% of the iceberg is above the water, but 90% of the iceberg is below the water. And we, as plaintiff’s lawyers, need to empathize and emphasize what those below the water damages are to insurance companies, to the defense team and ultimately to the jury, if that’s the case. If insurance companies want to stay in the old age of we’re just going to look at the medical bills, I think they’re going to be wrong more times than they’re right.

Rocky Dhir: You just said something fairly interesting that I, I don’t know that I got that out of the article, so I’m glad we’re talking about this, which is effectively that medical bills may be an antiquated way of arriving at a fair damages number. You’re not looking at the medical bills themselves. You’re looking effectively pain and suffering. Is that a fair pithy way of stating the actual non-economic damage? It’s what is it like to live with this injury aside from what you’re paying to doctors and hospitals? Is that fair?

Randy Sorrels: That’s very fair. I mean, if the juries award economic damages, that goes to pay medical doctors back, that goes to pay hospital’s back, but it doesn’t do anything for the person who’s having to suffer through the injuries that were thrust upon them typically in an unnatural way, through no fault of their own and they’re going to be living with this the rest of their life or at least for an extended period of time.

Rocky Dhir: So, is this paradigm, this idea of going from medical bills purely to looking more at living with the injury? Is that something that that you feel plaintiff’s lawyers maybe need to pay more attention to?

Randy Sorrels: Well, not only they may need to pay more attention to, but we are paying more attention to it. There’s constant discussion on our list serves whether or not we should submit medical bills or not in the case we tried.

So, my wife and I started a firm in January of ‘21, 2021. We tried a case involving Roger Clemens, the baseball player’s son and godson, and we had medical bills certainly because they were both injured, but we chose not to submit those to the jury, so it’s a pure non-economic damages claim, and for the two of them, the jury awarded $3.24 million dollars, recognizing the severity of the injuries on their physical body and what’s going on between their ears, for those two also professional baseball players. And we’re seeing more and more of plaintiff’s lawyers not submitting the medical bills because they’re really minor compared to what the loss is to the plaintiff.

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Rocky Dhir: That is kind of, I guess pardon the expression. It’s kind of a gutsy way of approaching damages because, you know, I think as lawyers, we tend to think you got to put everything in front of the jury, including the medical bills and including the non-economics. So, it sounds like you’re saying that, as almost as a trial strategy or as a tactic, you don’t put the medical bills up, you focus more on the pain and suffering, the non-economic side of it.

Randy Sorrels: That’s a very fair analogy. This last April, I was honored to represent two lawyers who were one of whom was hit in an auto-pedestrian case, she was the pedestrian, she was walking to the courthouse, and her medical bills in the past were $100,000, which are significant, but I emphasized to both, she and her husband, lawyers I don’t think we should submit the past medical bills because they’re not representative of her very significant injury. They shared future medical bills, which we did submit. The jury awarded those of $200,000 dollars, but they also awarded $9.1 million in non-economic damages. Again, another example of things that have been taught to me by others of let’s focus on the injuries to the plaintiff, the real injuries, the human losses to the plaintiff, not on what’s going to be paid back to the doctors.

Rocky Dhir: So, let’s — I guess, let’s go to the issue of metrics. How do you measure the pain and suffering and non-economic damages? You know, so — and the reason I think — the reason I’m asking that is, you know, some people have a higher pain tolerance. So, you know, what might — what might devastate one person might be something another person just says, “Ah, you know, ‘tis but a flesh wound”. And so, how do you — how do you measure that as a trial lawyer?

Randy Sorrels: Well, you start with yourself. You look at the injury suffered by your client and you put yourself in their shoes and you say, “How much would I take to have this inflicted upon me”. And if it’s not enough, then you’re probably too low. And that’s what we’ve done in cases. The large verdict, the $352 million verdict, unfortunately, we have a family member who has very similar injuries, it’s the worst injured person I’ve ever seen in my life. We have a family member who has a very similar injuries that we personally observed on a regular basis. So, we knew what the right asset number would be because we personally have gone through it, and the jury agreed with us, certainly on that.

Rocky Dhir: Well, I’m sorry for your family member, of course, and wish them well and hopefully they — hopefully, their pain is minimized. I don’t know if that’s even possible, but I wish them well, and, you know, moving forward.

You make an interesting point about damages witnesses in the article, right? And so, for those who haven’t read the article or about to read the article, effectively, you’re saying don’t just focus on the doctors. There are other professionals and other people that need to come into the picture to really help paint a fuller image for the jury, and you’re talking about therapists, you’re talking about family members. I was surprised to read that because, you know, is that not already being done by trial lawyers? Is that something that traditionally trial lawyers hadn’t done in the past?

Randy Sorrels: I don’t think they — that they, meaning we, have done it enough.

Rocky Dhir: Sure.

Randy Sorrels: You know, we have clients that we grow to like or love and we put them on the stand and we think the juries will like and love them like we do. But, you know, the jurors have suspicions, too, as they should, and for our plaintiffs to say, “I hurt this much per day or per week” is one thing, but for another person, whether it’s a co-worker or a therapist, they’re able to maybe better articulate what it is that the plaintiff is experiencing on a regular basis, and they are often more powerful witnesses than the plaintiffs themselves or maybe even a close family member. who the jury may think has a financial interest and in exaggerating their symptoms.

Rocky Dhir: Interestingly, you know, I was — I was thinking through that, you know, and — because the first thing when I read about family members or even the plaintiffs themselves is, you know, over time, if everybody understands, if plaintiffs start to understand that there is more of an emphasis on non-economic damages and, you know, maybe — maybe this is the wrong term, but the softer — the softer numbers of damages, that they might start coming in and, when they meet with their lawyers, kind of exaggerating their pain and suffering symptoms. It sounds like what you’re saying is that by putting in, maybe not close family, but maybe acquaintances or people that are friends of friends who’ve watched this, you kind of helped to bolster the credibility of those claims. Is that effectively what you’re saying from a persuasive standpoint? To not put up the people directly affected by it, but maybe those that are more in the orbit of those people.

Randy Sorrels: Yeah. I think for people to describe from a different angle, from a different viewpoint, what they see the injured plaintiff going through. You can use videos and you can use pictures as well to supplement that, and we’ve done that in cases.

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But it’s been outside witnesses that are able to describe in their own words what they’ve observed and it lessens the conspiracy theories that some defense lawyers want to piece together that every everybody’s just telling one big lie and it takes that argument away. It’s unlikely that these people from outside the close family circle are going to come in and lie on behalf of this plaintiff.

Rocky Dhir: You talk about starting with the client, and I found that to be a fascinating portion of the article. Kind of walk us through, if you would. When you’re sitting down with your clients, how do you start with them and how do you walk through the whole pain and suffering and non-economic damages side of their case? I mean, can you walk us through a day in the life of “starting with the client?”

Randy Sorrels: Yeah. So if you have, let’s say, a wrongful death case and a father dies in a terrible tragedy and the daughter is thinking about, “Well, he won’t be able to walk me down the aisle and he won’t be able to give me advice.” That’s something that’s expected and it’s major, it’s significant. Those are significant events that occur in our lives. But there are other times when that father may have been important, including teaching her how to drive when she gets older, or giving advice on boys, or how to save money, maybe the father was a particularly good money saver, how to invest in stocks. And so we tried to give the plaintiff more than just the highlights of our life events and go to the more minute details. And those can be very effective, including for an injured person, just turning over in bed every night wakes me up and it keeps me up an extra five minutes or an extra ten minutes. It affects my sleep. Affecting your sleep can also affect your longevity. It can affect your other organs. And so we tried to drill down as far as we can as to how these injuries affect a person on an everyday and then every decade time period.

Rocky Dhir: Walking them through this framework for non-economic damages. Do you have questions you ask them or do you sit down and actually have them describe what the pain and suffering is?

Randy Sorrels: In injury cases, what we try to do is give them a notebook, address it to us, and keep it for a month or two and write down each of the ways that the injury affects them from the most minute detail possible. And we can use that to prepare them for their deposition and for their trial testimony. And it helps us pick out things that we think will resonate best with the jury.

Rocky Dhir: Let’s talk, for example, about the other side of the aisle. So you’ve talked a bit about defense lawyers and how that comes into play. When it comes to addressing this issue of non-economic damages, you know, what role do defense lawyers play? I mean, and this is assuming that everybody’s trying to do best by their client but still get a justiciable result and that nobody is trying to hide facts or do anything like that. Assuming that you’ve got both parties, both sets of lawyers acting in good faith, what role do you see for defense lawyers in appropriately addressing the issue of non-economic damages?

Randy Sorrels: I think in this new paradigm, the defense lawyers are in a tighter box on what they can do. They almost have always and they still will say, “Folks, this is about a reasonable compensation system and what the plaintiff is asking for is not reasonable.” They have a difficult choice of them throwing out a number on what they think is reasonable, which could be unreasonable in and of itself, or not throwing out a number for which the only number in front of the jury is the number the plaintiff has suggested. So the defense lawyers are in a more difficult situation today because jurors are listening to real analysis done by the plaintiffs, the other witnesses who could testify about what the plaintiffs have gone through, and the plaintiff’s lawyers suggesting these numbers, and they’ve got to come up with a better argument than they’ve been coming up within the last few decades.

Rocky Dhir: This question might be — this might be one you don’t want to answer. And if you don’t, I completely understand. But so if you were on the defense side, let’s assume you switch roles for a second. How would you respond to this sort of — I guess it’s a fledgling but growing movement towards presenting non-economic damages. So you just laid out this dichotomy. You’ve got this dilemma. Do you throw out a number or do you let the plaintiffs number stick and you just say it’s unfair? If you were a defense lawyer, how would you react to this? What would be your strategy?

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Randy Sorrels: Well, it’s a case by case basis, and you have to talk about overreaching and you have to find a villain, whether it’s the plaintiff lawyer or the plaintiff themselves. In the case we tried last October, the defense lawyer, very, very good defense lawyer Rusty Hardin had come up with, I think, a practice number because we did ask for over $350,000,000, and he suggested number of about $24 million. In his argument and addressing our number, he said, “You know, this system is not about creating generational wealth because we had the injured victim, his wife and his children.” And that probably played well. My guess is they had focus grouped, that phrase generational wealth, but you can never tell what the other side knows. And I mentioned earlier my family member, it happens to be my father in law, and I watched my mother in law and takes amazing care of him on an everyday basis, my wife and her sister go over every week and take care of him, and we have a young son and he goes over with his grandfather and helps take care of him. And so in rebuttal, in response to the generational wealth comment, pointed out that the defendants did not create generational wealth in this. What they created was a generational burden because it was the wife who was taking care of Mr. Cruz, our client. It was his kids who were at that point in time 21 and 17 taking care of their father. And Mr. Cruz is going to live another 22 years. So it was likely going to be his grandkids also taking care of that. So our generational burden argument, we think carried today over their generational wealth argument. I’m sure they thought it was a great phrase at the time, but they didn’t know that we had personal experience going through this. What I witnessed with my own eyes, I was able to translate and supply to the jury in rebuttal.

Rocky Dhir: What would you think of putting an hourly rate figure to something like this? If you’re talking about family members having to care for the injured plaintiff, would it make sense to turn that into almost a semi-economic damages argument claim and say, “You know, look, this isn’t a medical bill, but all of these family members are going to be impacted and the man hours it’s going to take to care for this plaintiff amounts to this and if you put the hourly rate of Y to that number, here’s a number you get to, and it’s a fair number whether you’re a plaintiff or defense.” Do you think that would be a sensible argument to make?

Randy Sorrels: Yeah, well, in fact, that is often made. We call it a per diem argument in the most common form, how much per day, per hour if the jury should evaluate and you can do that and the numbers can add up. You can also do it on a job application, you know you’re applying for a job. Here is what the requirements of the job are you’re going to suffer through pain, anguish, and you go through the specifics and is that worth $10 an hour to do that? That’s effective both ways. We’ve seen defense lawyers use it effectively, saying this number amounts to X number of dollars per hour. That’s outrageous. And they tried, defense lawyers will try to put it in the frame of this is how much a person earns per year. It’s up to us as the plaintiff’s lawyers to put that in perspective because this isn’t a job. No one’s going to take a job that would pay you $50,000 a year to suffer through pain. But it’s a metric that you can use. And if we’re going to use that metric, let’s look at it over the long term. So keeping things in context, using the right metrics is the best way for each side to put forth their best argument.

Rocky Dhir: Before we close out, I wanted to address another piece of advice that you give in your article. Which is and if I read this — correct me if I’m misinterpreting or if I’m misstating. But effectively, most of the time, plaintiff’s lawyers will spend a lot of time talking about liability in their opening statements, in their closing arguments, but really they need to spend more time talking about these non-economic damages. I guess moving forward, the question becomes, what’s the right split on that? Because, of course, without the liability, you could be dead in the water, but if you don’t focus on economic damages, it may all be for not so. I know it’s case by case, but how do you kind of analyze how much time to spend on liability? How much time to spend on damages?

Randy Sorrels: In a contested liability case, you may spend 60% on liability and 40% on damages. If you think you have liability more in your favor as a plaintiff, then I prefer a 50/50 model of calling, 50% of the witnesses on liability and 50% on damages. Those damages witnesses may be more, but they may only be on the stand for 5 or 10 minutes. And those can be very powerful 5 or 10-minute witness, they can do a great job for you. And if you can have several of those looking at different angles so it’s not just a big duplicative series of witnesses, they can be effective.

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But I do believe because some plaintiff’s lawyers, including me, have been bitten by a case, they assume that liability will be one on, and you get toured out for no liability, I do believe we all default to spending a little more time on liability than we may have to.

Rocky Dhir: With your witnesses, do you like to take your non-economic damages witnesses and kind of intersperse them throughout the litigation, or do you try to clump them all together to just kind of unload all this information to the jury at one time? Do you have a preferred method or unadvisable method on how to do that?

Randy Sorrels: Yeah, it’s a multi-day trial. I do agree that you need to keep some focus each day on liability and some focus each day on damages, and that 50/50 balance is where I think is where I like to be in most cases.

Rocky Dhir: Well, Randy, this has turned out to be a very fascinating topic, and I’m sure we could talk about this all day, but unfortunately, we are at the end of our time together. And I want to I want to thank you again for taking the time to join us and for giving us this very fascinating overview on tort damages and that two non-economic damages. So thank you again for being with us.

Randy Sorrels: Thank you, Rocky. I really appreciate it.

Rocky Dhir: And, of course, I want to thank you for tuning in, and I want to encourage you to stay safe and be well. If you like what you heard today, please rate and review us in Apple Podcasts, Google Podcasts, or your favorite podcast app. Until next time, remember, life’s a journey, folks. I’m Rocky Dhir signing off.

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