Paul Edelstein:
Hello, Arthur. How are you?
Arthur Blyakher:
I’m good, Paul. How are you?
Paul Edelstein:
This is great. All right, so good, I’ve got Arthur Blyakher, my partner, my nemesis, my coworker, my point, counterpoint. Arthur, we haven’t spoken in a while, but usually we’re fighting at this time in the afternoon. It’s casual Wednesdays, is casual every day for me, but not for you.
Arthur Blyakher:
No.
Paul Edelstein:
We’re always fighting about issues and you’re a great protagonist for me and make me think and sometimes learn and change my opinions. But today, I thought we would talk about something that I think you and I don’t disagree on, right?
Arthur Blyakher:
Yep, we’re going to find something we agree on.
Paul Edelstein:
Yeah, there’s many things we usually disagree, but I think we agree on this topic. We’re going to talk about damages in civil cases, because it’s something we do all day long. Almost every case we have, the components are, we think somebody has been wronged, and then because of what happened to them, they suffered some type of damage. And we’re usually bringing claims and ultimately lawsuits to rectify the damages that people have sustained. You and I are always talking about damages, we’re always kind of on the same page about it and we’ve learned some things about it even recently, and I thought it’d be a good idea to talk about that. How does that sound?
Arthur Blyakher:
That sounds good. It’s an important topic to talk about.
Paul Edelstein:
Very important. Well, central to everything we get. And actually, before we started, you said, because I didn’t let you prepare, right?
Arthur Blyakher:
You did not.
Paul Edelstein:
And you said, “Paul, do me a favor, please don’t put me on the spot.”
Arthur Blyakher:
I did ask you that.
Paul Edelstein:
But you are a trial lawyer, are you not?
Arthur Blyakher:
I try to be.
Paul Edelstein:
Whoa, that’s a little humble of you. I think you’re actually a really good one. Despite you youth, you have more experience as a young trial lawyer than almost any I know at your age. But every trial lawyer gets put on the spot, so we are going to put you on the spot a little bit today, but they’ll be easy.
Arthur Blyakher:
Okay, let’s do it.
Paul Edelstein:
Let’s start with, why don’t you explain to our audience, all the different measures of damages that a typical civil case involves?
Arthur Blyakher:
All right, civil case meaning the type of cases you and I typically deal with, personal injury cases. Whether it’s a car accident, a trip and fall, slip and fall, in this realm, the main component, what we call compensatory damages, was the person hurt and should they be compensated? You look at the physical injuries they sustained and that’s different than in a contract world where you have liquid damages, you know exactly how much you suffered. In our world, it’s different. You try to put a value on something that’s hard to evaluate.
Paul Edelstein:
Let me stop you for a second. That’s great, you mentioned two words, they were lawyerly words. You said there are compensatory damages and liquidated damages and they’re different.
Arthur Blyakher:
Right.
Paul Edelstein:
Explain that to me as if I was a 10th grader. You talk to me like I’m a 10th grader a lot, by the way.
Arthur Blyakher:
I gotcha.
Paul Edelstein:
Keep doing that.
Arthur Blyakher:
Liquid damages is where you have a set amount that is determined before the lawsuit starts. In a contract case, I will pay you $1,000 for you to paint my house. You painted my house, I didn’t pay you, I breached the contract. We know the value of that loss, it’s $1,000. That’s liquid damages. We don’t have to try to evaluate what the measure of damages are. In our world if a person, say, breaks an arm, how much is that worth? Well, for each person that’s worth something different. To LeBron James, that might be worth something different than to me. I don’t use my hands really to work, I use my mouth, I use my brain. You, I’ve seen you in court, you sometimes use your hands to work.
Paul Edelstein:
All the time. In fact, a lot. My mouth, I like to say if somebody punched me in the mouth-
Arthur Blyakher:
Right, that would be a lot worse than a broken arm.
Paul Edelstein:
Correct. For me it would be more, right?
Arthur Blyakher:
Right. But in our world it works a little differently. We try to evaluate injuries and there’s also another measure of damages, economic. If a person lost time from work, that’s fairly easy to calculate. How much were they going to get paid if they were able to work? Those are a couple of damages, the line items of damages. Medical treatment, how much did the medical treatment cost? And at the time of trial, if you’re talking to a jury, it’s phrased as past and future. Everything up to the date of the trial and then what is expected from the date of the trial into the future. You have that for medical expenses, life care, what we call that, pain and suffering, same thing.
Paul Edelstein:
Now you’re throwing out that. I’m in 10th grade, now I feel like normally when I talk to you, I don’t know what the hell you’re talking about. Actually I do, but the 10th grader might not. So now you got to break that down. You mentioned a lot of phrases. You said pain and suffering, you said past pain and suffering, you said medical bills, you said life care plan. No idea. Well I do, but I’m going to be my 10th grader who’s like, “I don’t know what you’re talking about.”
Arthur Blyakher:
We’ll do it one by one. When you’re asking a jury, “We’ve proven liability,” so we established that somebody else is at fault for somebody getting hurt, for our client getting hurt. And now we’re talking about what’s the value of their injuries or how were they harmed, how can we make them whole? That’s the phrase I’m sure you’re going to want me to explain. That’s what we do in the civil context, in the civil justice system, we make people whole. You can’t put their bones back together, you can’t return their health.
The only thing we can do is ask for what’s a fair and reasonable amount of money to make them whole, to compensate them for what they’ve lost or what they’ve suffered. Usually it’s pain. Pain, it’s a loss of enjoyment of life, they can’t do the things they normally would do. So we try to evaluate that. And when you’re in front of a jury, you have to break it up. How much are their injuries worth up to the date of the trial and starting from the day that they got hurt?
Paul Edelstein:
That’s your past pain and suffering from the day they got hurt, up until the time you were at trial and you’re saying to a jury, “From the day this man or woman got hurt until today, I’m asking you for a set amount of compensatory damage to compensate my client for their pain and suffering for that period of time.” Did I say that right?
Arthur Blyakher:
Right. And the focus is the victim, the person that got hurt. That’s what we’re evaluating.
Paul Edelstein:
Let me ask you a question because we keep saying this. Everybody, every lawyer, pain and suffering, “I’m suing for pain.” Well a few people with commercials, they can’t freaking stand from some of my colleagues. Pain and suffering, are they the same thing?
Arthur Blyakher:
No.
Paul Edelstein:
Tell me the difference. I told you I’d put you on the spot.
Arthur Blyakher:
You did put me on the spot. I would say that pain is a little easier to evaluate. You know that during injuries you expect them to cause pain. A doctor evaluates that based on what a person says. “Tell me what you’re feeling.” “I feel pain. I broke my arm, it hurts here.” Suffering encompasses things that you cannot describe just by pain. My arm hurts, but I cannot care for myself. I can’t do the things that I need to do for myself. I can’t cook, I can’t clean, I can’t dress myself. And that’s causing me to suffer in a myriad of ways. And it’s not just pain. Pain would not encompass everything that a victim who got hurt would be going through.
Paul Edelstein:
Do you need both?
Arthur Blyakher:
You don’t need both but typically, in our room you see both.
Paul Edelstein:
Let me give you an example of that. Look, we know pain. Somebody breaks their arm, they’ve had pain, but then the arm heals. Now the arm doesn’t hurt anymore, but they can’t use it the same way anymore, may have suffering. I explained this to my 10th grader because he wanted to understand this. And he was like, “I don’t get it. You just told me you have this big verdict and where’s all this money come from?” And I said, “There’s pain and there’s suffering and this person had a lot of it.” And he said, “I don’t get it.”
And I said, “All right, let me give you an example.” I said, “You, my adorable son who I love so much, seem to play video games a lot.” You know what I’m talking about, right, Arthur? I know your kids are really young, but you’re going to get there. This kid’s playing video games all day long. He’s watching YouTube all day long, he’s playing Call of Duty all day long. It’s just Clash of Clans. I don’t know, there’s a bazillion of them.
Arthur Blyakher:
All over my head, I’m sorry.
Paul Edelstein:
You don’t even know what it is, you’re going to get there, you better learn these things. So I said to him, “You remember last week when mom came in your room and said you’re no longer playing? And to ensure that, she took the power cord from your computer right out of the computer, right out of it. Therefore, there were no more videos.” I said, “Let me ask you a question.” I said to my son, “Did you suffer any pain from that, were you in any pain?” He actually said yes, but the reality is no, there was no physical pain. But did you have suffering? You no longer could play the video games, did you suffer? To him, this was the greatest suffering ever invented by man. Obviously, we felt a little differently, but it’s an example. Here’s an interesting example you can give to somebody and say, Look, if somebody by way of their negligence…”
In this case it was intentional, my wife and I intentionally deprived him of this enjoyment as a punishment. But in other cases, you can have somebody that loses the ability to do something maybe because of an injury, and maybe the injury heals or maybe the injury’s not even one that produces pain. It could be a psychological injury, it could be a lot of things. And that injury prevents that person from doing things that they normally would like to do, so maybe playing video games. I don’t know, playing basketball. Somebody gets injured in a car accident, they wreck their knee, it’s horribly painful, but in a year later the knee’s 100% but guess what? You’re never going to play basketball again.
Well that, you’ve now taken some element of that person’s life away from them, their enjoyment of life, and therefore, there is a suffering component to that, perhaps an even bigger component than the pain component. And I think in most cases that’s what we have. Everybody thinks of an injury, you broke a bone, it’s a lot of pain, but oftentimes it’s that secondary part, that suffering part that’s far worse and needs to be compensated for. And that’s what we talk about a lot, do we not?
Arthur Blyakher:
Yes. And that’s what we try to explain to a jury. It’s hard to explain for somebody to grasp it right away, that that is what the money really is for.
Paul Edelstein:
Well, did I do a good job right there? I tried.
Arthur Blyakher:
You did a good job, but I would take it a step further and explain. In the world, use your son as an example. If you wronged him, assume that you guys were wrong, you and your wife were wrong for taking his cord.
Paul Edelstein:
Okay, that’s a big assumption, but all right, we’re going to go with it.
Arthur Blyakher:
He sued you. The money will not give him back to the cord that you took, but now he could use that money for something else in his life that will bring him some enjoyment, to fill that void that you left by taking that cord.
Paul Edelstein:
I get it. It’s like we try to restore a person’s dignity, because to whatever extent we can or give them the ability to do other things, and sometimes money provides that, in order to compensate for the loss they’ve sustained. And unfortunately, our civil justice system has limitations. We cannot repair somebody’s injury and we can’t replace the suffering that they had, but we can give them some financial compensation that is geared towards doing that. And you talk about a past is to now, I know the other component, to this future pain stuff. Why don’t you explain that?
Arthur Blyakher:
Sometimes it’s easy, sometimes the person will, if it’s an injury to your spine or your legs and you have difficulty walking or if you lose your ability to walk, you know that you will not walk. After you walk out of this courtroom, you still won’t be able to walk. And you won’t be able to walk, likely for the rest of your life. That obviously has to be proven with medical evidence, but if you do, how do you compensate that?
You look at the things that we have at our disposal, the resources, that work life expectancy or life expectancy, and how long will this person be dealing with these injuries? And you ask the jury to compensate them for the future, for the entire span that these injuries are expected to affect the victim. Sometimes it’s difficult because you don’t know if somebody’s going to heal or not, but you use experts, you use resources to try to evaluate that.
Paul Edelstein:
Well, you know what? There’s one pretty good resource for the future pain and suffering, and that’s called the United States government. I know that we all operate, and judges in courts all operate with a book. And it’s interesting that I think every lawyer, and even if you’re not a lawyer, when you have a case, you should start with this book. It’s called the Pattern Jury Instructor. And it’s a book put together by really good lawyers and judges and it’s edited and changed every year. That really governs all the laws in all these areas, but particularly in this area, there are government statistical tables in those books that come from years and years of research that give guidance to judges and then ultimately to juries and lawyers as to how long a person’s work life expectancy will be. We have an idea of this and it’s not 100% accurate, but it’s a great guideline.
It’s used by the United States government and used by a lot of different agencies, not only for work life, how long you’re expected to work. I’m going to work at least until next week and then I don’t know after that. When people normally expect to retire and things like that, but we also have life expectancy tables that are in the back of that book. I know you know this because you and I have sat and looked at them all the time, and the life expectancy tables for men, for women, for all these kind of things.
And they give a sort of a guideline as to how long people are expected to live and how long people are expected to work. And those guidelines are then used by us as lawyers and ultimately, hopefully by jurors for this future pain and suffering component, or in the case of somebody that wasn’t able to work, for the potential future compensatory damages for lost wages, which is a component. That’s how we do it, is it not?
Arthur Blyakher:
Right, that is.
Paul Edelstein:
So if you were disabled from this point, being that you are, how old are you now, 27?
Arthur Blyakher:
34.
Paul Edelstein:
34. How long have you been working in with us?
Arthur Blyakher:
20 years, about.
Paul Edelstein:
Wow, so you started when you were 14 years old?
Arthur Blyakher:
14, 15, yeah.
Paul Edelstein:
Wow. You were a bigger pain in the neck when you were 14 than you are now, but I got to tell you, you’ve matured.
Arthur Blyakher:
I had much more hair.
Paul Edelstein:
Had more hair.
Arthur Blyakher:
[inaudible 00:14:47]
Paul Edelstein:
But here’s the example I’m going to give. You as a 34 year old and me as, I know it’s going to be hard for anybody watching this to believe, but I’m 55 years old, incredible. This lawyer thing has only given me gray hair, but it hasn’t taken my hair away.
Arthur Blyakher:
You don’t have a boss like mine.
Paul Edelstein:
I’m 55, so our work expectancy would be vastly different and our life expectancies would be vastly different. And so that would manifest itself. If you and I each had the same claim, there’d be difference. We would be asking a jury for more money in future pain and suffering for you than me, because you have a longer life expectancy unless I kill you. Just doing something wrong here, which would never… And you have a longer work life expectancy than me. Well, simply the differences in our age, so those are components to this future damages type of claim, are they’re not?
Arthur Blyakher:
Yes.
Paul Edelstein:
That’s a pretty interesting concept for people to think about. And then you mentioned another phrase a little while ago called life care. And I know what that is, so what we’re really talking about is potentially future medical needs for people. And sometimes we do what’s called a life care plan, but not all the time. Why don’t you explain? Because that’s not in every case, a future life care plan, but it relates to this future claim of medical damages, so how does that work?
Arthur Blyakher:
Not every case calls for it, but when somebody suffers an injury that is expected to affect them for the duration of their life or for a long period of time and you know they will need [inaudible 00:16:27] care, sometimes we know what they need because they’re already getting it, sometimes they’re limited by their own resources. And the purpose of the case is to make sure that they can get the care that they need in the future. So what we do, we hire qualified experts, people that do this for a living, that they refer to the medical records, the doctors, the victim themselves, what they say, and they identify what level of care the person will need in the future.
Whether that’s a home attendant, whether that is moving somewhere that has an elevator, as opposed to a walkup building. How many times will they need to go to a certain specific type of doctor? Will they need a neurologist visit, will they need an orthopedic visit? How many times a year will they need to get a diagnostic exam? All of this, the life care expert will put into an easy to read and understand form, so charts typically. And they’ll say, “They’ll need this type of care for this long, this many times, and here’s the cost.”
Paul Edelstein:
Okay. But when we have life [inaudible 00:17:37] we’re typically talking about people that have been really, really seriously hurt and may need some real care long-term, potentially for the rest of their life.
Arthur Blyakher:
Right, because an injury that heals, you do not need a future life care plan because the injury is done.
Paul Edelstein:
One component of that, I just thought of this, we actually have a new name for it. It’s usually the home care or healthcare component. And that’s usually a big one, someone who’s going to need care. I view that as the spousal component. You know why I would say that? I see you laughing, right? Because here’s the situation. I know your wife, Megan, she’s fantastic. I think she’s works pretty hard to make things a little easier for you and your children, right?
Arthur Blyakher:
Absolutely.
Paul Edelstein:
And I know my wife, amazing. I get cared for incredibly. But let’s imagine somebody then hurt you or me to the point where we needed way more care than our already amazing wives provide for us now, which we think is part of the marital contract and we provide something the other way. But let’s say now, you’ve been injured so bad that Megan really needs to care for you, help you shower, help you bathe, help you dress. You can’t earn a living, and your sex life has been impacted, which is part of the marital compact, really, really important. Or same for me. I need all this other care, I’m not even going to be able to work anymore. And now my wife’s going to have to replace all of these things that I normally would do. Is that a component of damages that somebody could be compensated for?
Arthur Blyakher:
Of course, and two ways.
Paul Edelstein:
Oh, I knew he was going to say two ways. I’m so glad you said two ways. See, you’re just like me. Tell me both ways.
Arthur Blyakher:
Well, first, directly for the person that got hurt, it’s a component of suffering. The second way, which some might argue might be bigger, for our spouse. Our spouse has a direct claim also in those scenarios.
Paul Edelstein:
What is that called? I love this term.
Arthur Blyakher:
Loss of consortium.
Paul Edelstein:
Right, I talk to my wife about that all the time. Listen, I need some consortium.
Arthur Blyakher:
Weird name, right?
Paul Edelstein:
“You better give me consortium.”
Arthur Blyakher:
Loss of consortium. And sometimes these type of injuries have as much if not a worse impact on the spouse than they do on the victim. And where I’ve worked on two that come to mind right away, where the care that the spouse provided and the suffering that the spouse went through, dealing with what happened to their husbands, you can’t put a number on it.
Paul Edelstein:
Right. I know what you’re talking about. You’re talking about this catastrophic case that you and I really worked on together, hand in hand, with Magomed Abdusalamov, a boxer who was catastrophically injured, and then his wife essentially had to become everything. And so she received really, the maximum compensation that I think anybody’s ever gotten in New York State for a spouse, it’s called loss of services and loss of consortium. That’s a completely separate type of claim. And then there was also another component. When you said there’s two ways, that’s one way, which was Mago’s loss, in his life care plan loss or home health aids and things like that, another component. Because the wife really shouldn’t have to do that. So Mago’s wife had her own claim for her loss, losing her husband’s loss of services, loss of consortium, all these things that we take for granted with our lovely spouses.
And then there was another element of damages in the Magomed case for his future life care needs for having somebody to actually come in and help and care for him, which the wife was doing, which Baka was doing and still does, but that’s not really your obligation when somebody else calls that negligence, so we got that compensation to court. Here’s what I’m want to do, I just want to sum this all up and wrap it up in a nice bow with this little piece of what we’re talking about, damages, so I could bring us into the next level of damages which we didn’t even touch on. And so just to kind of bring it all together, you have these different measures of damages in civil cases. Compensatory damage to compensate somebody for their loss, that could be past paid and suffering, future pain and suffering. That can be past medical bills, future medical bills. That can be past loss wages, future loss wages.
And that could be the loss of services and loss of consortium claimed for a spouse in and of herself. We kind of talked about all that stuff. I think we did a really good job to do it in a really short period of time, because as we know, nobody’s attention span other than my mom wants to watch this podcast very intently. So we wanted to just do a really quickly and really concisely, and I think we did. But there is another element of damages we didn’t even talk about, that I know you love because you have now become the expert. And that damages is what?
Arthur Blyakher:
Punitive.
Paul Edelstein:
Yeah, punitive. My kids think everything I do is punitive in nature to punish them, but that’s not really true. So let’s talk about punitive damages in another episode. If you really enjoyed hearing all about Arthur and I’s lives, how amazing they are, how much compensation they would get if Arthur and I were, God forbid, hurt, now let’s talk about punitives in another episode. Punishing damages, punishments and where that comes from. You want to do that in the next piece?
Arthur Blyakher:
Let’s do it.
Paul Edelstein:
All right, let’s do it in another piece. Hang in there.
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