BY DARREN PENN
It’s funny: depending on what part of trial a true trial lawyer is talking about (voir dire, opening statements,presentation of evidence, direct examination, cross examination, expert witnesses, charge conference, closing arguments, etc.), they will probably tell you it is “one of the most important parts of any trial.” Of course, closing arguments is no exception. It is the penultimate moment. The last chance to speak to the jury. The opportunity to take everything that has happened before and put it all together with a powerful, moving argument that sways the jurors to your client’s side and results in a favorable verdict. Closing argument is romanticized in the movies with epic performances by some of the greatest actors like Al Pacino, Denzel Washington, Mathew McConaughey, Gene Hackman, Paul Newman, Gregory Peck and James Stewart. Every trial lawyer dreams of delivering the perfect closing argument, and it is a topic of discussion at every trial seminar. But, even with all of this emphasis on closing arguments, you may notice that not too many people actually talk about how to really ask a jury for money damages in a civil trial. That moment, the Big Ask, is something that is vital for every closing argument. It only lasts for maybe 5-10 minutes and thus is a small part of the closing argument overall. But, it has to happen or else the jury will not know what your client wants and/or deserves and will have little or no idea how to determine what is fair or not. It is virtually a universal principle that a trial lawyer giving a closing argument in a civil trial for money damages must actually ask for the money damages. So how do you do it?
Credibility is perhaps the single most important aspect of a trial and is the foundation for setting up a strong closing argument. Establishing Credibility is important from the moment you step into the courtroom for voir dire and continues through opening statements, the presentation of evidence, and the rest of the trial. Here are some ideas to keep in mind to establish the credibility needed for a strong closing argument.First, have a good rapport with your client. Awkwardness at counsel table with your client reaches the jury.Remember, they are watching. Second, establish credibility with the judge from the beginning of the case all the way through trial. You want to be the lawyer the Court knows it can trust and who will not incorrectly cite law or take shortcuts. Third, build a rapport with the jury beginning with voir dire. It is also not a bad idea to have a professional rapport with opposing counsel!Engage and empower the jury. Let them know that “this is an important case” and they are fortunate to be an important part of it. When it comes to the ask in closing argument, make sure you as the attorney actually believe the damages you are about to ask for are fair and reasonable. If you do not believe it, do not ask for it! Remember:you have been establishing your credibility throughout the trial and if a jury believes that you are reasonable, they will believe your ask is reasonable. But the moment they get a hint that you do not believe in what you are asking for, your credibility will go out the window. It can happen that quickly.In cases with serious injuries, you obviously will be talking about large numbers. When talking big numbers, help the jury feel empowered by letting them know that they have the ultimate power. They have the power to right the wrong, the power to speak the truth, and the power to render justice. When approaching the amount of damages in closing, make sure they know why the verdict is fair and reasonable. Remind jurors the decision is ultimately in their hands. Also, remind the jurors that they are part of this too. Remind them that every day during the trial they had to come in and fulfill their civic duty and go to work. Unlike their regular jobs, this is probably the shortest job they will ever have but it is also incredibly meaningful and they have the opportunity to make a huge difference.“You can award a dollar, you can award $100 million. It’s really up to you. We are going to make some suggestions to you. We think our number is fair but you have all the power here.”
HOW TO DETERMINE WHAT TO ASK FOR
The amount to ask for obviously depends on the type of damages involved and the seriousness of the injuries.Wrongful death damages are different than damages for permanent injuries. So it ultimately depends on the type of case and nature of the damages involved. Here are some ideas in several different scenarios.
Medical Expenses and Lost Wages. Often referred to as “blackboard damages” or “special damages” and includes past and future medical bills, past and future lost wages, funeral expenses, lost profits, etc. These are generally easy. They are what they are. It is an amount to put on the board, flip chart, screen, etc. As an aside, you should always write down your damages when discussing them. Also notice, are the jurors writing with you?
Wrongful Death Cases.
Georgia law on wrongful death is broad as it should be. The damages awarded are for the full value of the life of the decedent from the decedent’s perspective. Generally, wrongful death damages are broken into two categories. First are the economics. That is, what is the economic value of the life of the decedent had they lived? Typically, but not always, an economist is hired to calculate this value and it includes such things as future lost wages, work benefits and other economic damages and the total amount is reduced to a present day value. This becomes a “blackboard” number to put on the board. Second is the non-economic side of life encompassing the general value of life, or he donic damages. A jury is given broad discretion in determining the value of the decedent’s life from their perspective and, more often than not, this is an area where you, as the credible trial lawyer, must have reasonable and meaningful reasons for putting a value on this part of the decedent’s life based on the kind of person they were, how they lived their life, and what was important to them. Tell their story and the jury must put a value on the life. This is not easy.Some examples for suggesting values to the jury are 1) use some multiple of the economic damages (“our work lives are a small part, no more than a third, of our true lives” or “we are more than the sum of our parts”); 2) if an older adult, they have proven the value of their lives by the way they lived and suggesting a value based on the proven value; 3) if a child, they had so much life to live and provide ranges based on a full life with different education levels and/or professions; 4) using numbers provided by the U.S. General Accounting Office which puts a value on the average human life every three to four years or so (that figure is around $7 million today); 5) equating the value of life based on what we humans are willing to pay to save a life (like millions spent to rescue a stranded mountain climber or little girl in a well) or for entertainment (millions for a Picasso painting or $8 million a year for a football coach, etc.); 6) Using a mortality table that would suggest how long the decedent would have lived, ask the jury to put a value on each year/day/hour/minute of life lost due to the wrongful death.
In cases involving permanent injuries, the jury must not only deal with the past damages, but look into the future and award an amount that is fair and reasonable going forward. In these cases, you will have an economic side (past and future medical bills, wages and life care plans) as well as the intangibles of dealing with the permanent injury (past and future pain and suffering and emotional distress). Pain and suffering involves the human damage. The real world harm done to the individual because they are hurt. Make sure the jury hears all the ways in which your client has been affected by the injury on a daily basis. Fortunately, in Georgia, we have a pattern jury charge that actually lists out topics to consider such as past and future physical pain and suffering, past and future mental anguish and anxiety, interference with normal living,interference with enjoyment of life, loss of capacity to labor and earn money, impairment of bodily health, fear of extent of injury, shock of injury and limitation of activity. Trial lawyers have very effectively used these factors by listing them out on a chart or board and including blanks off to the side to fill in for each topic. And then the number sare added up for a total suggestion to the jury.
Some other examples for suggesting values to the jury in cases involving permanent injuries and pain and suffering are: 1) use some multiple of the economic damages; 2) use a mortality table for life expectancy and then put a value on the harm on an annual/yearly/daily/per minute basis depending on what is reasonable in your particular case; 3)using one of the expert’s hourly rates as a reasonable rate for permanency; 4) using the minimum wage hourly rate to calculate the damages; 5) using the example of a want ad or Craigslist ad describing all the aspects of the injuries,including past medical care, future medical needs, life care plan, pain and suffering, etc. and asking the jury “what would a job like that pay?” or “what would an ad like that ask for?” and then suggesting a reasonable value; 6) using a bell curve argument where the lowest value and highest values are put on a chart with a curve showing where the majority of the verdicts should be and suggesting a value from that range.
WHETHER TO SUGGEST A VERDICT RANGE
Trial lawyers often debate whether to ask for a specific dollar amount of damages or a range of damages at trial.Personally, I prefer to give juries ranges. I prefer to tell them they have the power and ultimately must set the value of the damages. I give them suggestions of ways to think about the damages and ways to calculate them. The suggestions are fair and reasonable and will provide the range of damages. But at the end of the day, the jury determines the damages and they can set them within that range or somewhere else altogether. Other lawyers would rather suggest a number that they believe is the right, fair and reasonable number for the damages in the case.There is no right or wrong way to do it. But it must be comfortable to you.
Sometimes lawyers use creative examples when suggesting verdict amounts to juries. For example, in a products liability case, the cost to recall or fix the product could be used as a basis for arguing a reasonable amount of damages. The amount spent on a national advertising campaign, the cost of mailing letters to
customers warning about the dangers associated with a product, the cost of the “traveling circus” of experts used to go around the country testifying in certain types of trials, the cost of defending the case, or even the annual salaries of CEOs have been used to drive home the message of what is fair and reasonable to juries in different kinds of cases. At the end of the day, the point is to get to what is fair and reasonable and there can be many avenues to get there.
This an important topic when asking for a verdict amount. During those moments where you are actually suggesting a verdict amount to the jury, actually use the verdict form and show the jury how it works and what it actually looks like! Do a show and tell. Pull the form out and walk the jury through it. FILL IT OUT. Yes, fill it out and put the suggested verdict amount or range in the actual blanks on the form. This will help ensure that the members of the jury truly understand all of the damages involved in the case and all of the decisions they have to make in calculating damages.
Jury trials are not for the faint of heart. The courtroom is full of emotions. Someone has lost something significant or a loved one. The other side is trying to keep their money in the midst of an awful situation. And there are the decision makers, members of the jury, who are trying to understand the case, how the damages are determined and if the damages are a fair response to the incident that brought everyone to the courtroom. Asking for an amount of damages is not easy, but it is absolutely critical. If done with credibility in the correct way, your clients will benefit greatly.
ABOUT THE AUTHOR Darren W. Penn is the founding partner of Penn Law, LLC in Atlanta where his practice focuses on medical law,products liability, trucking/auto accidents and business torts. He is a graduate of the University of Georgia and a former president of the Georgia Trial Lawyers Association. Darren can be reached at email@example.com.©ATSURKAN/SHUTTERSTOCK.COM