TYLA Officers

   

Rebekah Steely Brooker, President

   

Dustin M. Howell, Chair

   

Sam Houston, Vice President

   

Baili B. Rhodes, Secretary

   

John W. Shaw, Treasurer

   

C. Barrett Thomas, President-elect

   

Priscilla D. Camacho, Chair-elect

   

Kristy Blanchard, Immediate Past President

TYLA Directors

   

Amanda A. Abraham, District 1

   

Sharesa Y. Alexander, Minority At-Large Director

   

Raymond J. Baeza, District 14

    Aaron J. Burke, District 5, Place 1
   

Aaron T. Capps, District 5, Place 2

   

D. Lance Currie, District 5, Place 3

   

Laura W. Docker, District 10, Place 1

    Andrew Dornburg, District 21
    John W. Ellis, District 8, Place 2
    Zeke Fortenberry, District 4
   

Bill Gardner, District 5, Place 4

   

Morgan L. Gaskin, District 6, Place 5

    Nick Guinn, District 18, Place 1
   

Adam C. Harden, District 6, Place 6

   

Amber L. James, District 17

   

Curtis W. Lucas, District 9

    Rudolph K. Metayer, District 8, Palce 1
   

Laura Pratt, District 3

    Sally Pretorius, District 8, Place 2
   

Baili B. Rhodes, District 2

   

Alex B. Roberts, District 6, Place 3

    Eduardo Romero, District 19
    Michelle P. Scheffler, District 6, Place 2
   

John W. Shaw, District 10, Place 2

    Nicole Soussan, District 6, Place 4
    L. Brook Stuntebeck, District 11
   

C. Barrett Thomas, District 15

    Judge Amanda N. Torres, Minority At-Large Director
   

Shannon Steel White, District 12

    Brandy Wingate Voss, District 13
    Veronica S. Wolfe, District 18, Place 2
   

Baylor Wortham, District 7

    Alex Yarbrough, District 16

   

Justice Paul W. Green, Supreme Court Liaison

   

Jenny Smith, Access To Justice Liaison

   

Brandon Crisp, ABA YLD District 25 Representative

   

Travis Patterson, ABA/YLD District 26 Representative

   

Assistant Dean Jill Nikirk, Law School Liaison

   

Belashia Wallace, Law Student Liaison

 

 
TYLA Office

Tracy Brown, Director of Administration
Bree Trevino, Project Coordinator

Michelle Palacios, Office Manager
General Questions: tyla@texasbar.com

Mailing Address

P.O. Box 12487, Capitol Station
Austin, Texas 78711-2487
(800) 204-2222 ext. 1529
FAX: (512) 427-4117

Street Address

1414 Colorado, 4th Floor
Austin, Texas 78701
(512) 427-1529

 

Views and opinions expressed in eNews are those of their authors and not necessarily those of the Texas Young Lawyers Association or the State Bar of Texas.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Article of Interest

Beware of Presumed Damages: Prepare in case you lose the presumption
By:  John Burkhead

In some cases, proof of certain facts can allow a jury to presume certain elements of actual damages,1  including mental anguish damages and physical pain.2  But beware of relying upon such a presumption. Presumed actual damages are subject to at least a couple of major caveats. First, it appears that a “plaintiff must always prove special damages” in order to recover any presumed actual damages.3  This means that you need to have a jury award some type of economic or pecuniary damages or any presumed damages that are awarded are meaningless. Second, any “awards of presumed actual damages are subject to appellate review for evidentiary support.”4  I take this to mean that you had better go ahead and put on all your evidence of the presumed element of damages as if the damages were not presumed.

Pretrial considerations in presumed-damage cases should, therefore, not really differ from cases where damages are not presumed. So you need to be sure to plead for all the damages you seek and disclose the amount and method of calculating any economic damages so that you can put on evidence of special damages. You should fully disclose all of the lay and expert witnesses that can testify to the nature, duration, and severity of any element of presumed damages, and, depending on the value of the case, you could invest in demonstratives such as a day-in-the-life video or medical illustrations. Spend time with your client and any important witnesses so that you understand the full extent of the injuries and are prepared to put on your evidence. If the testimony is crucial, it may be worth taking witness statements or doing a direct examination during a deposition. (This is especially true if you anticipate the other side will file a summary-judgment motion.)

Hancock v. Variyam illustrates the dangers of what can happen if one relies on presumed damages without planning for a scenario where the court takes away the presumption. Important supporting proof of mental anguish was absent, including proof that the claimant required “medical attention;” testimony from the claimant or other witnesses to corroborate any outward manifestation of mental anguish or elaborate on the impact of anxiety or depression on the claimant’s life; and finally, a showing that certain activities or situations, such as work, were avoided or impaired.

In conclusion, it is not safe to rely on a presumption of damages. When preparing to try a presumed-damages case, prepare just as if you had not already met your burden of proof.

1. Actual or compensatory damages are intended to compensate a plaintiff for the injury she incurred. They include general damages (non-economic damages such as for loss of reputation or mental anguish) and special damages (economic or pecuniary damages such as for lost income). General damages are noneconomic in nature, such as for loss of reputation and mental anguish. See Hancock v. Variyam, 400 S.W.3d 59, 63 n.4, 65 n.9 (Tex. 2013).

2. See Hancock, 400 S.W.3d at 63–65 (in defamation per se case, jury can presume damages for mental anguish and loss of reputation), citing Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002); Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 552 (Tex. App. – Fort Worth 2006, pet. denied) (“Pain and suffering may be inferred or presumed as a consequence of severe injuries.”); Coastal States Gas Prod. Co. v. Locker, 436 S.W.2d 592, 600 (Tex. Civ. App. – Houston [14th Dist.] 1968, no writ) (“Mental anguish may be presumed in cases of severe injury”), citing Dallas Ry. & Terminal Co. v. Davis, 26 S.W.2d 340 (Tex. Civ. App. – Dallas 1949, no writ).

3. Hancock, 400 S.W.3d at 66–68.

4. Id. (citing Bentley, 94 S.W.3d at 605–06 (plurality)); Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)).


John Burkhead is a lawyer at the Law Offices of Frank L. Branson, P.C. A version of this article first appeared in the December 2013 issue of The Dicta and is printed here with the permission of the Dallas Association of Young Lawyers.