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Tips on Arguing Damages in the 90’s

John D. Winer, San Francisco

I. Introduction.

Damage arguments which worked for plaintiff’s attorneys in the 1970’s and 1980’s are, for the most part, no longer viable. General damage awards have decreased dramatically in automobile accident cases and, to some extent, in all cases including catastrophic injury cases.

The reasons for the decreased general damage awards are probably very complex but suffice it to say that there has been a shift in society such that jurors have become more resistant to equating pain and suffering with large monetary awards.

Although it was probably never a very good idea to plead solely to a juror’s sense of compassion, plaintiff’s attorneys were able to get away from this technique during a time in our history when people had compassion for victims.

However, over the last few years, society has changed and “victim” has become a dirty word. A plaintiff’s attorney who attempts to make an emotional appeal to a juror based upon his or her client’s injury alone will meet a juror’s resistance. Even general damage arguments based upon logic as opposed to emotions will probably not be enough to motivate a juror to award a large amount of money for pain and suffering. No amount of “logic” will convince a skeptical juror that a large amount of money will make a plaintiff “whole.”

There are, however, two concepts that will work. They will be discussed in the following sections of this article.

II. Converting Anger to Compassion.

Although general damage awards are decreasing in most cases, they are actually increasing by leaps and bounds in cases in which it is clear that the jury has become incensed by the defendant’s conduct.

Therefore, as plaintiffs’ attorneys, in every case in which the facts can possibly justify it, we must attempt through argument to make the jury angry at the defendant and then attempt to convert that anger into compassion for the plaintiff. Once a juror is in the proper mindset, the old fashioned general damage arguments will once again be effective.

Obviously, this technique will work better in an intentional tort case than in an ordinary automobile accident case; however, even in a simple auto accident case, there may be information which can be derived in discovery or during the course of the trial which will cause a jury to become angry at the defendant. Failing that, there may be material which will cause the jury to become angry at the defense attorney. In either case, the plaintiff’s attorney must watch for every possible opportunity to motivate a jury through its anger.

Once a plaintiff’s attorney is able to locate a potential target for the juror’s anger, it is critical that the attorney allows the jurors to “become” angry on their own. The biggest mistake that a plaintiff’s attorney can make is to attempt to “force” the jurors to become angry by making confrontive and bombastic arguments. For instance, plaintiffs’ attorneys should allow the jury to conclude on their own that the defendant is lying as opposed to telling them in argument that the defendant is a liar.

Next, except in cases in which punitive damages are properly pled, the plaintiff’s attorney must be very careful to not make punitive damage arguments in a compensatory damage case. In other words, under no circumstances in a non-punitive damage case should a plaintiff’s attorney ask the jury to punish the defendant or to make an example of the defendant.

Instead, the plaintiff’s attorney should utilize subtle arguments and connect the outrageousness or recklessness of the defendant’s conduct to the sad fact of plaintiff’s damages. Arguments such as “The defendant had 10 drinks, got behind the wheel of a powerful and dangerous vehicle without thinking of the consequences that it would have upon plaintiff who will have to live the rest of his life with a constant pain in his neck while the defendant goes about his business” can be effective without being improper.

In a case in which you can make the jury angry, the general damage arguments must be based around a combination of plaintiff’s injuries and defendant’s misconduct. One should not argue in a vacuum that “Plaintiff must now live with a lifetime of back pain. Would $500,000 be enough to compensate for this pain?” One should argue “Plaintiff must now live the rest of his life with constant back pain. Would $500,000 be enough to compensate plaintiff for the damages done by this man who decided to risk plaintiff’s life and the life of everybody on the road by driving while he was legally drunk?”

III. Appealing to the Juror’s Sense of Community Rather than Empathy for a Specific Plaintiff.

In all cases, but especially cases in which there are not facts that will make a jury angry at the defendant, plaintiff’s attorney should attempt to motivate the jury by appealing to their sense of community or neighborhood. Everybody cares about their community. Jurors are much more likely to read about local news in their newspapers than they are likely to read about world events. When a rock star comes to a town and shouts out “Hello, San Francisco” or wherever, the audience always goes wild. Sports fans go absolutely crazy over local sports teams when they have no other allegiance to the team other than location. People care about their communities and for years trial lawyers have been making “conscious of community” closing arguments without specifically relating those arguments to general damage issues.

Now, more than ever, it is critical to appeal to a juror’s sense of neighborhood and community since most jurors will have very little compassion for the injured plaintiff.

People do not like to look at, think about, touch and smell other people’s misery. When somebody walks down the street towards us missing a limb or in a wheelchair, we often look away. If we can help it, we do not want to have to deal with other people’s difficulties.

As we become less compassionate as a society, it becomes easier and easier for jurors to care less and less about plaintiffs’ suffering. However, peoples’ lack of compassion for individuals does not seem to have diminished their concern for their neighborhoods and communities.

Therefore, as plaintiffs’ attorneys, we must tailor our motivational general damage arguments to the jurors’ sense of neighborhood. Instead of arguing “Joe Blow has been injured” we should be arguing “One of our neighbors has been injured. Joe Blow has been injured. When one of our neighbors has been injured by another’s wrongful conduct, the whole neighborhood has been injured. You as a jury have the ability to make the neighborhood whole again by adequately compensating Joe Blow for the lifetime of pain that he will suffer.”

This type of argument can be a starting point to set jurors in an appropriate state of mind as you begin to ask for a general damage award.

Also, it can be used to motivate jurors in rebuttal argument and to convince a juror that a large general damage award will not cause the death of society but, rather, will improve society by improving the lot of one of their neighbors and thus their neighborhood.

IV. CONCLUSION.

Juror’s want to do justice. They want to right a wrong. As trial lawyers we must focus the juror’s attention on the magnitude of the wrong and convince them that they must award substantial damages to right that wrong — not for a plaintiff’s enrichment, but to make their community whole again.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.

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