Our goal in every civil case is to get a judgment or settlement that will help compensate our clients for the harms and losses they’ve suffered, even if compensation cannot restore their lives to the condition they were in prior to the events of their case. But another—very important—part of our job is to counsel our clients on the importance of mitigating damages before, during and after their trial.
The process of mitigation serves two main purposes: First, it facilitates the healing process. Second, it reflects positively on our client’s character, thus increasing their chances of obtaining a favorable verdict.
Mitigation of damages
Mitigation of damages is a legal principle under which a plaintiff who has suffered a loss or injury is expected to take reasonable steps to improve their situation or correct the harm. It ties into a value that our country has grown up with—we expect that if someone is knocked off the horse, they’ll get back up. When plaintiffs neglect to take action or make no attempt to overcome their hardships, judges and jurors are likely to question the sincerity or the depth of the injury.
Think of a fender bender, for example. If you go to court for a car crash, and the other party is found to be responsible for the damage, the court still expects you to get the car fixed and prevent rust or further deterioration of condition. If you are injured, there is an expectation that you will seek medical attention or therapy so the injury doesn’t worsen. If you lose your job, you’re expected to look for a new one while you collect unemployment wages.
Practical reasons for mitigation
While mitigation of damages is a critical first step to the healing process for our clients, there are some practical legal benefits as well:
- The defense can leverage a lack of mitigation attempts. In a civil court case, the defendant’s attorneys can actually argue that the plaintiff hasn’t done enough to mitigate damages on their own and leverage that point against them in court. If they are successful, a jury may allow the plaintiff a lower recovery.
- Juries expect to see mitigation attempts. Judges and juries are more likely to empathize with a plaintiff who doesn’t adopt a victim mentality. Plaintiffs who sit idly by in the time that it takes for their case to go to trial aren’t likely to garner much favor from the jury.
As civil litigation attorneys, we have a responsibility to help our clients show proof of mitigation efforts, so a judge or jury doesn’t question our clients’ motivation to move on or heal. An effective way to do this is to have witnesses testify about specific actions or behaviors that exemplify our clients’ mitigation efforts. These witnesses can be doctors, coworkers, family members—anyone who has seen our clients strive to overcome the hardships that resulted from the events of their case.
For example, we represented a woman who had broken her heel in a car accident. Her son gave powerful testimony that told of how he returned home from college and witnessed his mother painstakingly carrying a laundry basket up a flight of stairs. She crawled up the steps, one step at a time, grimacing as she went, but was determined to get her laundry done. The jury was able to perceive her as a woman who was willing to overcome an obstacle and who was trying her best to be productive despite her debilitating injury.
Mitigating damages is critical to healing
We want our clients to thrive after a case. We want them to heal financially, emotionally and physically. And while a settlement is always a good start, the client must also make some mitigation efforts independent of the legal process in order for healing to occur. We strive to counsel our clients to make decisions that will help minimize their losses.
- Mitigation of damages can have positive effects. We represented a man whose wife was killed by a drunk driver. He put his settlement to good use—set some aside for his son’s college education and sought out grief counseling for his family. He took responsibility for pulling his life together and avoided a downward spiral. We’ve kept in touch over the years and are pleased to report that he and his son are doing well.
- Failing to mitigate can have unfortunate consequences. We helped a client secure a judgment in a traumatizing defamation case. The events of the case were so terrible that they led him to suffer from post-traumatic stress disorder (PTSD). We encouraged him to see a psychiatrist, or seek the comfort of family members. He made some attempts, but we lost track of him after the case and he quit going to therapy. Tragically, his psychological state deteriorated and one day, about four years later, he took his life.
Money doesn’t heal in and of itself
Understandably, our clients sometimes feel the desire to seek legal revenge on those who have wronged them—it’s a perfectly human reaction to suffering a great deal of physical or emotional pain. However, the desire for revenge or retribution can obscure the ultimate goal, which is healing.
The take home point here is that money doesn’t heal in and of itself. Because of this, we encourage our clients to mitigate damages in a variety of ways—and ultimately, find their way to a new mental and physical normal. If that kind of help is what you need, give us a call.
The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.