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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
A. ECONOMIC DAMAGES
1. $______________PAST MEDICAL CARE & TREATMENT
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
(1) $_______________TOTAL ECONOMIC LOSS
(2) $_______________TOTAL NON ECONOMIC LOSS
C. CONSORTIUM DAMAGES
(1) $__________ PAST LOSS OF CONSORTIUM
(2) $__________ FUTURE LOSS OF CONSORTIUM
$______________TOTAL CONSORTIUM DAMAGES