ARGUING DAMAGES
“Money makes the world go around, the world go around, the world go around,
Money makes the world go around, it makes the world go around” From the musical Cabaret
“The best things in life are free, but you can keep them for the birds and bees
Now give me the money, that’s what I want…” Sung by the Beatles in 1963
“It’s a very personal, very important thing. Hell, it’s a family motto. Now are you ready?…OHHH! SHOW ME THE MONEY doesn’t that make you feel good just to say that Jerry. Say it with me one time brother…” Cuba Gooding, Jr. Movie Jerry Maguire 1996
Is the sole objective a civil tort action really the just the money? Is it the primary role of the advocate for the injured to be an instrument to collect as much as he or she can from a defendant being sued? Do we measure and compare success of the civil trial lawyer by the amount of the verdict they are able to achieve? If so, our professional role is comparable to a door to door siding sales person. The exclusive role of the advocate in a civil tort case is to achieve justice for their client. Under our system, justice in such a case is measured by a verdict of money, for those who are legally entitled to it, which represents a sum equal to the harm done. If the harm is slight, the verdict in dollars should be slight. If the harm is great, the verdict in dollars should be great. However, the purpose of civil tort law includes more than simply determining the sum of money that is equal to the harm.
“The law of torts serves two basic functions: it seeks to prevent future harm through the deterring effect of potential liability and it provides a remedy for damages suffered” Medina v Pub. Util. Dist 147 Wn 2nd 303 (324) See also: Babcock v State 112 Wn 2nd 113.
Justice, under our civil tort law, is intended to discourage future conduct through a finding of fault and to reasonable and fairly compensate the injured person for the damages sustained. Every tort rule, to some extent, is intended to both deter other wrongdoers as well as to compensate the injured person. Restatement (2nd) Conflicts of Law sec 145 p. 416. This is true irrespective of whether the law allows punitive damages or not. It is an inherent part of our tort law.
In London, at the corner of St James Street, there is a very old building, the: Norwich Union Insurance building. At the top of the building there is a large statue of a blindfolded woman holding in one hand the scales of justice and in the other a large sword. Huddled beneath her and under her protection are a man and woman who look frightened. She stands as their protector. A symbol of the role of justice and the civil justice system.
The concept of justice has occupied man over the centuries. Plato & Aristotle identified four virtues as the most important among people in ethical behavior. One of them was justice. Aristotle centered his teaching of ethics upon these four virtues. Thomas Aquinas referred to them as cardinal virtues because he taught they were of the highest importance in our moral life.
Justice, they taught, involved the idea that if one has wrongfully deprived another of something of value, they are obligated to restore it. That is, justice demands the restoration of what has been wrongfully taken away. Accordingly, if one has wrongfully caused injury to another, justice remains unsatisfied until proper compensation has been paid to restore the previous balance of equality. In fact, the word Justice is from the Latin word jus from which we derive such words as just and justice. Right is also used as the equivalent of justice; that is right is correlative of duty. People are obligated with the duty to do justice and to do what is right. This concept is an essential part of our civil tort law.
We have seen that there is only one reason why the civil justice system exists and that is to do justice. Justice in a civil tort case is potentially a two part procedure. The first duty is to determine which party should prevail based upon the facts and law. If the plaintiff is entitled to a verdict, the next duty is to determine the amount of the verdict. The only way justice can be achieved, in that instance, is by a money verdict in a reasonable and fair amount. While the law speaks about restoring injured people to their original situation through the verdict, we know that in tort cases the money will not restore life or limb. However, it does not follow that therefore, no money should be provided or only the bills should be paid or that arbitrary limitations should be imposed on verdicts. Nor has a jury fulfilled its duty by a verdict which is less than full justice because anything less than full justice is an injustice.
But how should a jury evaluate what full justice is? It can only be done by comparing the harm done to a sum of money which reasonably and fairly equals the harm. It is only when the scale is accurately balanced with money on one side and the extent of harm on the other. That requires careful examination of each element of damage which the law provides. It means each element must be individually weighed from a dollar standpoint until the money and harm are equal. It’s done objectively without regard to reservations on the total so long as it is reasonable and fair considering the facts, evidence and harm done.
This consideration requires breaking the evaluation process down into legal categories. The first category is time – past and future. Evaluation of damages should be done in two separate time periods of past and future. Past damages may and probably do differ from the effect of future damages over remaining life. More importantly, since the plaintiff is entitled to only one day in court – one time for a jury verdict – the damages must cover his or her entire life and not just the present moment.
Damages also differ in type. One category is economic damages. Those damage which are capable of calculation for such things as wage loss, medical bills, property damage and the like. Another category is non-economic damages. Those damages which represent the effect upon the injured person. They include such things as the nature and extent of injury, disability, disfigurement, pain and suffering and the loss of enjoyment of life. The fact there is no convenient yard stick to measure these by does not allow the jury to ignore them or treat them as impossible because to do so would result in an injustice under the law.
In order to achieve full justice it is essential the jury understands the two time periods and the fact there are two kinds of damages: economic and non economic. The jury must be told these 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 or to suggest that the jury should evaluate what the “needs” of the plaintiff are in money. Non-economic damages have nothing to do with needs, bills or specific economic issues. They only have to do with making the dollars equal to the harm irrespective of such economic needs. 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.
Communicate the fact they possess the power to do justice. It is a right as significant as that of the power of the judge. Let them know you trust their doing the right thing. Remind them of the importance of the case not just to the individuals involved, but to the broader meaning of justice. Close with passion and power.
There are many approaches to arguing damages. Keep in mind, however, that in some states lawyers are not allowed to suggest a dollar amount as a jury verdict. Washington allows lawyers to do so. Some of the more common ways of arguing damages in Washington are:
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. You need to completely and fully appreciate, to the extent it is possible, what the harm has meant to this person’s life. Who was this person before and who is the person now? If you haven’t “crawled inside their skin” you won’t be able to speak for them and explain what justice means in this case.
Think about concepts of justice. Be prepared to explain the verdict as full justice and not as some legal abstract. Think deeply about the jury’s role, about the system which we believes is the best in the world to achieve fair and full justice and about the need in America for justice.
When Martin Luther King became an activist for civil rights he began to receive nightly phone calls threatening death to his family. Unable to sleep, tormented by visions of his family suffering harm, King broke down one night in his kitchen. As David Garrow writes in his biography of King, at that moment King heard an inner voice saying, “Stand up for justice, stand up for truth. . . .” From that point forward, the voice in the kitchen was King’s personal anchor of faith, the message that enabled him to overcome the most dire threats. What had once been an intellectual creed had now become personal, deep, and overpowering faith and drive for justice for all. The concept of justice being due as money is due in a promissory note fits well within our law relating to damages. In his famous “I have a Dream” delivered on the steps at the Lincoln Memorial in Washington D.C. on August 28, 1963, King said in part:
“So we have come here today to dramatize an appalling condition. In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.
This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness. It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation.
So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to open the doors of opportunity to all of God’s children. Now is the time to lift our nation from the quicksand’s of racial injustice to the solid rock of brotherhood. “
The great advocate Moe Levine has given trial lawyers wonderful ideas for arguing damages. Some of these ideas include the following, taken from an argument on behalf of a young woman who suffered injuries:
Take the time to think about the effect of injury upon people. For example, we know that it is not possible to just injure a part of a person. Injury affects every part of the human being. A headache can rob a day of sunshine. Pain in a foot isn’t limited just to the foot. It affects everything the person does.
Injuries cause real devastation to a person’s life. This includes:
Hopelessness
It’s important to keep in mind that a trial is not a battle of logic. It is, instead, a battle of impression. People form opinions and draw conclusions at a subconscious level on the basis of multiple impressions they receive and only then rationalize those opinions or conclusions by logical process. Once they form these opinions or impressions they tend to filter out anything that conflicts with them. Focus on the impression and not the logic. Think about the issues and people’s basic values. Consider how your client’s case would look to a group of people who don’t know them the way you do.
Cases have themes whether you give them one or not. If you don’t try to frame the theme of your case for the jury, they will do it for you. The statement: “this case is about….” is part of the mental process the jury will go through in evaluating your client’s case. What is the fundamental issue the case presents? What is you claim about the fault and the damages? Expressing this in a short sentence and identifying the basic theme is an important step in the presentation of damages to the jury.
A trial should be a story and not a chronology. People think in stories. They learn by stories and they decide by stories. Tell your damages as a story to the jury and not as simply a chronology of facts. Make it compelling. Give it human interest. Don’t just describe the injury, but explain what difference that injury makes.