Category Archives: Damages


One of the better blogs relating to trial issues is The Persuasive Litigator:  Dr. Ken Broda-Bahm recently wrote about jurors and their calculations regarding civil damages in this blog. He notes that a  recent study demonstrated that people on the jury generally move from a story, to a general sense of damages and then to a specific number. It has already been rather well established that offering a number, acting as a psychological anchor, plays an important role in their arriving at  a verdict in civil damages. The question of whether  you should suggest a verdict amount or leave it to the jury has been determined. You should ask for a figure. However, it also appears that in addition to the anchor you offer by way of a number we should also needs give meaningful reasons for it by providing reasons in context.

In this recent study the research team led by two psychologists from Cornell concluded that jurors are most often at a loss to know what number is appropriate. However, they note a number of studies establish a relationship between how bad the injuries are and the amount awarded. In general, the more serious the harm the larger the amount. Certainly, no real surprise for trial lawyers. However, we know from research that suggesting a verdict amount or number acts as a “primer” which influences the final conclusion.  If our damage range is high, the discussions are generally higher than a lower suggested number. The number acts as an anchor for the discussion of the appropriate amount.

What this study demonstrates is that when the dollar amount isn’t simply offered as an arbitrary selection, but is supported by meaningful references it results in a larger amount. Not only were the ultimate awards in the study closer to the anchor but were more predictable when there were meaningful reasons given to support it.

“Meaningful” refers to reasons which were deemed appropriate  to the number  suggested. While this will vary from case to case the important point is that we must do more than just throw out a number. We need to offer reasons why the numbers we suggest are appropriate, reasonable and fair. It is more important that we offer rational explanations for the numbers then the reasons offered. For example, in  the well known research study which involved people lined up at a copy machine and the research team would go to the front of the line asking to  use the copy machine first. In the cases where they gave no reason the request was granted about 60% of the time. In the case where they gave a reason such as they had an important meeting it was granted about 90% of the time. In fact the study showed that the reason wasn’t even important, it was the fact a reason was  given that made the difference. I have referred to this psychological principle as the “magic of the word because.”

Jurors are generally without any experience or education about correlating dollars to harm. They are searching for some one they can trust and reasons they believe justify their verdict because they all want to do the right thing. This is why some have argued that it is a mistake to ask for the bills or economic loss where they are relatively small compared to the verdict being sought. Jurors look for things they can rely upon as a measuring stick and the out-of-pocket loss represents something they can understand and are likely to use as a measuring stick for the general non-economic damages. For example, in a wrongful death case the out-of-pocket loss could be relatively small and it might be  better to waive those costs for fear it would hold down the general verdict.

The lesson for us is to  offer rational reasons for the amounts we argue for in our damage cases. I recommend dividing the damage request into two time periods: past and future. I recommend that these time periods be divided into economic damages and noneconomic damages.  Both periods should be divided into the elements of damages on the non-economic side of the argument. The first advantage is that by breaking the numbers up in this way they are more acceptable than simply putting down one lump amount. I recommend that the non-economic elements be argued from the standpoint of the impact each makes. Physical pain for example is not the same as mental pain. Disability has consequences that are different than the loss of enjoyment of life and so on.

The lesson here is always ask for a figure and always  combine it with reasons for the amount you ask .


Many of us have represented the parents of a brain injured or disabled child, a person whose spouse is paralyzed or a loved one with disabling injuries. While we have a certain medical knowledge about the consequences of the injuries to the injured person injuries are not confined to just the person who was injured. They also involve everyone connected to the circle around the injured person.

That includes caregivers as well as the injured person and other uninjured family members. We have learned how all of the relationships are forever changed and will never be the same again. We also know that the evidence shows the divorce rate is much higher in situations involving injured spouses or injured children. We know it is due to the stress of becoming a caregiver, because the injured person isn’t the same person and because the other members of the family unit suffer when all of the attention is directed at the injured member of the family.

I have talked to juries about the  fact that  the injured person  is changed forever.  In a  case  involving  a brain injured wife  I told the jury what it is like. I’ve said something like this to the jury:

“Helen, at least the Helen  George married, doesn’t exist anymore.  Yes, we see  her  physically  looking about  the same as before the injuries and  she is still alive , but she’s not the Helen  George fell in love with  and  married.  That Helen whose personality ,wit and attraction George fell in love with was destroyed forever  by the  injury inflicted on her brain. Those of us who are married  were attracted  to our spouse  by their  personality  and the essence of who they were.  We married them and  we found out  that they weren’t the perfect people  we thought they were and they learned we weren’t so perfect either. We learned to adjust to our mutual imperfections. Over time we  became  closer  to them  as  we  learned  to  understand  them and our relationship grew.  However, if suddenly and unexpectedly  that  same  person  we  learned to love  is brain injured like Helen, we now have  whole  new  person  we really haven’t  met before  as a spouse.  The profound change  in  our relationship  with that injured person  isn’t just  a change  for us. It is a change for our children,  family members and friends as well. Nothing will ever be the same again. The effect of injuries like this cannot be fully  foreseen  and  continuously  impact  our  lives as well as the life of our injured spouse into the forseeable future. ”

James W. Foley’s poem  drop a pebble in the water  describes  the reality  of what happens  to a family  when  one of them suffers serious and debilitating injuries:

“Drop a pebble in the water: just a splash, and it is gone; But there’s half-a-hundred ripples Circling on and on and on, Spreading, spreading from the center, flowing on out to the sea. And there is no way of telling where the end is going to be.”

It’s our role in representing injured people to be able to reverse roles with everyone in this kind of a tragic setting. We need to be able to see and feel what it is like when someone you love and are responsible for suffers serious injuries.

Peter Rosenberger has written a book Hope for the Caregiver: Encouraging Words to Strengthen Your Spirit. Rosenberger’s wife, Gracie, was seriously injured in a car collision in 1983. She went through dozens of surgeries and ultimately had her legs amputated. The couple have two sons and Rosenberger and his children have been Gracie’s care giver during her life since the collision.

The New York Times interviewed him. He said he only left her at home alone for short periods and never alone overnight. He has some assistance part-time in the home. He is able to work out of his house and has a radio’s show and gives speeches.

When asked why he had written the book he said that: “More than 65 million Americans serve as volunteer caregivers for vulnerable loved ones. If we are not in a healthy place, we risk becoming a Petri dish of resentment.” Rosenberger says  that caregivers should take some breaks – “even if those breaks only come an hour at a time. You help them better if you are healthier, not just physically but fiscally, emotionally and spiritually.”

Rosenberger talks about what he calls the “three I’s” He says these are: (1) loss of independence (2) loss of identity and (3) isolation. He explains that caregivers frequently are so wrapped up in the person they are dealing with that they lose their own identity. For example if you ask a caregiver how they are doing they are likely to say “we” just got home from the hospital. Caregivers often speak in the third person because they have lost their identification. Certainly, caregivers lose significant independence because of the dependence on them by the person they are caring for. If one’s life is largely confined to caring for a person needing around-the-clock care one does not have much of an opportunity to mix with and be with others. That also  creates a sense of isolation and aloneness.

Rosenberger recommends support groups as well as the ” three W’s.”  He says these are wait, water and walk. In times of high stress learn to wait, bite your tongue  drank a glass of water and go for a walk. He recommends taking a moment before responding in a stress situation. Practice breathing slowly until you feel yourself growing calmer. Walking he says also is helpful in removing tension.

While there is no substitute  for spending time  with  your injured client and their families a book like this  can provide  helpful insight in  gaining an understanding  of what it is  the people you represent  are really going through.


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.



Past Loss

1.         $______________PAST MEDICAL CARE & TREATMENT

Future Loss

1.         $______________FUTURE MEDICAL CARE & TREATMENT



1.         Past Loss

(1)        $__________ PAST LOSS OF ENJOYMENT OF LIFE

(2)        $_________  PAST DISABILITY & DISFIGUREMENT

(3)        $_________  PAST PAIN AND SUFFERING


2.         Future Loss

(1)        $__________FUTURE LOSS OF ENJOYMENT OF LIFE


(3)        $__________FUTURE PAIN AND SUFFERING


3.         Totals 

(1)        $_______________TOTAL ECONOMIC LOSS

(2)        $_______________TOTAL NON ECONOMIC LOSS

$_______________TOTAL DAMAGES


(1)        $__________ PAST LOSS OF CONSORTIUM

(2)        $__________ FUTURE LOSS OF CONSORTIUM