ARGUING DAMAGES

I’ve published a basic outline  for  argument  before, but, as  to damages, how do we evaluate what is full money justice in such cases? It can only be done by balancing the extent of the harm done against  a dollar  amount  which equals that harm. The verdict  should be a  perfectly balanced scale with money on one side  and the harm on the  other. When the scale between these two essential parts of a tort trial is perfectly balanced there is justice. That means that each aspect of the injury must be evaluated by the jury and a dollar amount determined as being equal to the harm involved.

The approach you use to damages will usually be  based  upon the amount of harm and potential damages involved. It is more common to use a per diem approach in a case of  less major injuries.  As  a general rule, the larger the obvious damages the less the importance of breaking down the  damages  into elements or time .

Keep in mind at all times the importance of the fact that there are two kinds of damages: economic and non economic. They are very different. Economic damages are based upon need and specific dollar expenses. Non economic damages have nothing to do with need or specific expenses. Don’t let defense counsel confuse the jury that the only role of damages is to pay bills. To the extent you can make the jury understand this vital point and award full justice in dollars you have done your job as a plaintiff’s attorney in a tort damage case.

So, what are some of the ways you can argue damages? There are many approaches to arguing non economic damages. Some of the more common are:

  1.   Per Diem: Assigning a dollar amount to time elements. With this argument one gives a dollar amount to an element of injury and multiples it over time. For example, one might argue the minimum wage per hour for pain and suffering over past and future life expectancy. Traditionally this type of argument is usually reserved for less obvious injury cases the extent of which can’t be clearly demonstrated. It is not permitted in  some states, but has been used  in Washington state for many years.
  2. Lump sum: Simply suggesting a total amount to be awarded without breaking it down. Here the lawyer either assigns a single total dollar value to the entire case without any specific dollar break down. Taking into consideration all the injuries, past and future, all the bills and all the elements of damage allowed by law a total is suggested to the jury for the entire verdict. In very major injury cases this may be an effective way to argue.
  3. Damage ranges: Suggesting a low and high range for the case or for each element of damage. One can also argue a range of verdict from a minimum to a maximum range which is argued is reasonable. This can be done for the entire verdict, for each element of damage, for each injury sustained etc. Ranges are sometimes an effective way to argue damages where there is difficulty trying to evaluate what the injuries consist of and there is uncertainty as to the jury attitude.
  4. Elements of damages: Assigning dollars amounts to each element of damage allowed in the jury instruction. In this case, the advocate takes each element of damage, such as pain and suffering. The damage period is divided between past and future. A dollar amount is assigned to that element for those two periods of time and added together. That total represents the suggested amount for that particular element of damage.
  5. Damages per injury: Assigning damages to each specific injury received. One may chart each injury the client received. For each injury a dollar amount is assigned, past and future. The total of all injuries represents the total verdict.
  6. Giving no dollar suggestion: Not giving the jury any number and letting them decide for themselves. The advocate reviews the evidence and the law relating to damages, discusses the effect of injuries and damages generally, but tells the jury he or she plan to leave it to the jury to decide. The general wisdom among advocates is that if you are permitted to argue dollar amounts to a jury as a verdict you should always do so. The jury wants and needs direction. Yes, it is possible to offend the jury by the amount argued where it is extremely inconsistent with their perception of the case. But, you should argue what you sincerely believe anyway, provided it is based upon some rational facts.

Most advocates believe that it is only in rare instances would a plaintiffs lawyer not suggest the amount the jury should award. However, there are state’s where this is prohibited. The jury wants and needs direction. Yes, it is possible to offend the jury by the amount argued where it is extremely inconsistent with their perception of the case. But, you should argue what you sincerely believe anyway, provided it is based upon some rational facts. Remember to explain how the injury or harm is translated in the real world regarding the client’s right to enjoy life in an injury case. To do that you need to understand what has happened to your client. Who was this person before and who is the person now? Have courage and determination in representing your clients.

I recommend treating  the elements  of damages  separately in explaining their impact  on the plaintiff. Assume, for  example, the elements  are: (a) loss of  enjoyment of life (b) disability (c) pain and suffering. My approach is to evaluate the significance of each. I would  rate loss of enjoyment of  life the most  significant,  disability second and pain and suffering third. Since the most difficult concept to persuade the jury about is pain and suffering, I divide it  into mental pain and physical pain in my discussion. I will argue mental pain is far more significant than physical pain and discuss  what mental suffering really means  to an injured person. I will  argue disability from the standpoint  of  having a  role in life and relationships to oneself  and others.  But, loss of enjoyment of life, I consider  the most significant. That is the  reason we are  alive and the thing  that gives our existence a purpose. Life is more that going to  work every day,  it  is about peace of  mind and health. For each of these elements  I will give a suggested figure. In a major  damage case like quadriplegia  or brain damage my discussion will be more general about  all of  the elements for  a lump sum amount.

Obviously, each advocate approaches argument in their  individual manner, so these  are simply how I generally handle damages.

Here’s how a final breakdown of the damages  might be outlined in an injury case with a consortium loss. Note  the separating of economic from non-economic damages  and the division of loss into  past and future.

DAMAGE TOTALS

A.        ECONOMIC DAMAGES

Past Loss

1.         $______________PAST MEDICAL CARE & TREATMENT

Future Loss

1.         $______________FUTURE MEDICAL CARE & TREATMENT

$_____________TOTAL ECONOMIC LOSS

B.         NON-ECONOMIC DAMAGES 

1.         Past Loss

(1)        $__________ PAST LOSS OF ENJOYMENT OF LIFE

(2)        $_________  PAST DISABILITY & DISFIGUREMENT

(3)        $_________  PAST PAIN AND SUFFERING

$_______________TOTAL PAST NON ECONOMIC DAMAGES

2.         Future Loss

(1)        $__________FUTURE LOSS OF ENJOYMENT OF LIFE

(2)        $__________FUTURE DISABILITY & DISFIGUREMENT

(3)        $__________FUTURE PAIN AND SUFFERING

$______________TOTAL FUTURE NON ECONOMIC DAMAGES

3.         Totals 

(1)        $_______________TOTAL ECONOMIC LOSS

(2)        $_______________TOTAL NON ECONOMIC LOSS

$_______________TOTAL DAMAGES

C.        CONSORTIUM DAMAGES

(1)        $__________ PAST LOSS OF CONSORTIUM

(2)        $__________ FUTURE LOSS OF CONSORTIUM

$______________TOTAL CONSORTIUM DAMAGES

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2 Responses to ARGUING DAMAGES

  1. Pat Trudell says:

    Great post Paul. I appreciate learning from the best.

  2. frederick mattara says:

    I hired an attorney because a county sewer hole left unattended my armada fell into destroyed car air bag went off I 6 inch hole in leg the attorney says your arthritis played part. I cannot lift my legs 3 inches or walk without heavily leaning on a walker. 2 years now confined to house. I take 5 hydrocodone a day for pain. I will need hip replacement knee needs surgery and also ankle. Lawyer says only worth $100,000 dollar ship surgery $53,000 to 56,000 knee $20,000
    ankle $15,000 lawyer does not incl. surgeries. 208-362-5774 what do you think?

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