There are many approaches to arguing damages. Some are more appropriate to the facts of a case then others and there is no one approach that fits all cases. While research indicates the benefit of always suggesting the verdict amount you are asking for, keep in mind in some states lawyers are not allowed to suggest a dollar amount as a jury verdict. Washington allows lawyers to do so and there is no exception for a case where it is appropriate to fail to do so where it is permitted. Here is a simplistic summary of some of the more common ways of arguing damages:
- Per Diem: Assigning a dollar amount per 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 computing the minimum wage per hour for each hour, day, week, month and year for the injuries over the past period to trial and for the rest of life expectancy, asking for a verdict in the amount of the total sum. Or this approach can be used for specific injuries. Traditionally this type of argument is usually reserved for less obvious injury cases. Keep in mind this kind of argument is prohibited in some states, but has been used in Washington state for many years.
- Lump sum: One can Simply suggest a total amount to be awarded for the entire case or for each kind of injury without a specific break down. The total is arrived at by 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. The same approach can be used for each specific element of injury the judge has instructed the jury about.
- Damage ranges: Suggesting a low and high range for the entire case or for each element of damage is another way to argue damages. One can also argue a range of verdict from a minimum to a maximum range which is argued is reasonable. 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 about liability or damage issues.
- Damages per elements of injury: One can also argue dollar amounts for 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: One can assign a damage amount for 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.
- Offering 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.
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.