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There are a variety of ways to argue damages. Here is an example from a final argument I made in a child birth injury malpractice case in 1999. Joel Cunningham, my partner, and I tried the case together. The case involved brain injury to a child, Bryce Kirkland, delivered by C-section in Boise, Idaho. At the time of trial, the family lived in Montana. The cause was negligent delay in performing the C -section. It was undisputed the child would require around-the-clock supervision for the rest of his life. The case is Kirkland vs Blaine County Medical Center, No. civ 97‑0237‑s‑ejl. During the trial the child was in the court room for less than ten minutes and I had a treating doctor explain and demonstrate his disability.

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Before trial we declined $5,250,000 at mediation. A day before final argument we were offered another $200,000 for a total of $5,450,000 cash, which we also declined. The jury verdict was

$29,715,077, including $11,215,077 in economic damages and $15,000,000 in noneconomic damages in favor of Bryce Kirkland. The award also included another $3,500,000 in noneconomic damages in favor of his parents, Sandy and Quinn Kirkland. 

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One interesting fact is the defense claimed Bryce had a significantly reduced life expectancy. In fact, Bryce is alive today. Here are some excerpts from my damage final argument. There is nothing profound about these examples but illustrate one approach.

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  June 11, 1999, THE COURT: Be seated. –

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Mr. Luvera.

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MR. LUVERA:

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Thank you, Your Honor. I have limited time to talk to you, but I would be remiss if I didn’t start out by acknowledging the way we have been treated here. I was apprehensive when my Idaho attorney friend asked me to please consider this case, coming here from Washington to Idaho to represent a Montana couple. I have been treated ‑‑ we have been treated very, very well. I was at the Galaxy diner, waiting to be seated there the other day, and there’s plaques on the wall, and there was a picture of Judge Lodge, and it said that he was an All American for Boise State and a leading ground gainer in football in 1953 and 154, and he’s treated us like an All American in the courtroom, and I want to acknowledge that. Peggy (court reporter) has put up with my fast reading. Carol (Clerk) has been very good about carrying things back and forth. Tad Blank (Bailiff) has been spectacular.

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Well, my job is a hard one, I think, and it’s to talk about the most difficult subject you and I have to deal with, and that is the subject of justice in terms of our system of justice. I want to make sure that we remember who the client is ‑‑ oh, I forgot something. I want to also thank my wife who has put up with me all this time, and these clients who have trusted us. They have no idea what I am going to tell you, they just trust us, and I want to thank them for that.

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I heard a doctor on the radio advertising some product, and he said, if somebody said if you let me take your health away and I’ll give you $30 million dollars would you do it? Then he went on to promote his health product. And I thought, that really is an important truth isn’t it? What is most important in our life? Health! If we don’t have health, we don’t have anything. if we have Bryce in this courtroom or any other baby in this courtroom and we had a priceless painting in the courtroom and there was a fire, but only one could be rescued, we know which we would save. We know that military pilots are ordered to eject from $50,000,000 aircraft when there is any question of danger to them. Well, that’s the real world. What is value of a plane compared to the value of human beings?

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I’m almost done here; I suppose you’re glad to know that. But I wanted to share with you a couple of things more about this. Physical suffering causes people to have a sense of helplessness, a sense of lack of hope. Everybody has dreams, dreams for themselves, dreams for their children, goals. And when you have something like this happen it destroys dreams and goals for our child. Everybody has an image of who they are, what they look like, what their role is, everybody has a role in life, homemaker, housewife, worker, whatever it is. Injuries like this change them forever. Everybody has a past, and that past is made up of what happened to them and where they’ve been and where they’re going. Forty years from now, his past is going to be quite different than it would have been had this not happened.

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I know I haven’t made your job any easier by suggesting the verdict figure that I did. I don’t apologize for it at all. I think that what has happened here is unconscionable. I think the harm done to this innocent child requires full justice without any sympathy, without any forgiveness, without cutting the total amount due – full justice.

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Well, I’m done ‑‑ Well, with one exception. When the defense is through arguing, we get a short additional argument, but we have court limits in time, so it won’t be very long.

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I would like you to carefully consider doing what your conscience thinks right in this case, whether you agree with me or not, do whatever you think is right, I urge you to do what you believe in your heart is right – do it, because I believe in the jury. system and the American justice system and the fact that the system makes people accountable for what they do. This is one of the most important cases I’ve ever tried and it’s very important we do justice together. 

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I want you to be proud of whatever you do ‑‑ even if you don’t do what I suggest, even if you disagree with my dollar figures, please make sure whatever you do is what your conscience tells you. I want you to look back when it’s ten years from now and you’re having a cup of coffee and you think, well, whatever we did, it was right and fair thing to do. Okay? Because I think this jury is the voice and conscience of this community in every respect.

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I want you to reflect on this ‑‑ when you’re evaluating this – please, keep this in mind. This is the hard part of this tragedy. He isn’t always going to be this small, cuddly little boy. He is someday going to be a grown man of 40 years old; people will shun, reject, and avoid. He will have nobody to love him. He will have caretakers taking care of him, but he will be all alone.

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Robert Frost wrote, “The woods are still and deep, but I have miles to go before I sleep, miles to go before I sleep.” I leave here, you leave here, we all leave here, and we go on with our lives. These parents and this child go on forever until their death, both child and parents. Please, whatever your verdict is, make it justice for now and forever into their future lives.

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Thank you. You’ve been great. I know, I can hear you saying, for goodness sakes, will you stop talking. I can almost hear you saying that. But you see, I am worried about, what if I didn’t say what I should have said? I am afraid I may have said something wrong or left something out I should have said to you‑‑ well I leave child and his parents as your responsibility now‑‑ Thank you.