Paula Luvera, The Daily Record Newswire
How do we as plaintiffs’ attorneys evaluate full-money justice in a tort case involving serious injury?
Ideally, the verdict should be a perfectly balanced scale, with money on one side and harm on the other. While each aspect of the injury must be evaluated by the jury and assigned a corresponding dollar amount, a talented defense attorney can significantly reduce an award by logically conveying to the jury that their responsibility is simply to cover the economic damages caused by the injury. But don’t let defense counsel persuade the jury that the only role of damages is to pay bills. Making the jury understand the nature of non-economic damages and how to quantify them is a vital point in a tort damages case.
There are many approaches to arguing non-economic damages.
1) Per diem — Assigning a dollar amount to time elements. With this argument, one gives a dollar amount to an element of injury and multiplies it over time. For example, one might argue the minimum wage per hour for pain and suffering over past and future life expectancy. Traditionally this type of argument is usually reserved for less obvious injury cases the extent of which can’t be clearly demonstrated.
2) Lump sum
3) Damage range — Suggesting a low and high range for the case or for each element of damage. One can also argue a range of verdict from a minimum to a maximum — for the entire verdict, for each element of damage, for each injury sustained, etc. The damage range approach is sometimes effective for cases in which there is considerable difficulty trying to evaluate what the injuries consist of, and palpable uncertainty as to the jury attitude.
4) Elements of damages — Assigning dollars amounts to each element of damage allowed in the jury instruction, e.g. 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.
5) Damages per injury — Assigning damages to 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.
6) Giving no dollar suggestion — Letting the jurors decide for themselves. The advocate reviews the evidence and the law relating to damages, discusses the effect of injuries and damages generally, but leaves it to the jury to decide.
Your approach must be 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. Who was this person before and who is this person now? Have courage and determination in representing your clients.
I recommend treating the elements of damages separately in explaining their impact on the plaintiff. Assume, for example, the elements are: (a) loss of enjoyment of life; (b) disability; (c) pain and suffering. My approach is to evaluate the significance of each.
I would rate loss of enjoyment of life the most significant, disability second and pain and suffering third. Since the most difficult concept to persuade the jury about is pain and suffering, I prefer to divide it into mental and physical pain. My approach is that mental pain is far more significant than physical pain and I discuss what mental suffering really means to an injured person. I argue disability from the standpoint of having a role in life and relationships to oneself and others.
But I consider the most significant of damages to be loss of enjoyment of life — the reason we are alive and the thing that gives our existence a purpose. Life is more than going to work every day; it’s about peace of mind and health. For each of these elements I suggest a figure.
In a major damages case like quadriplegia or brain damage, my argument would be a broader, more general discussion about all of the elements coming together as a lump sum.
Regarding the no-dollar suggestion route, it is possible to offend the jury by presenting an amount where it is extremely inconsistent with their perception of the case; however, the general wisdom is that if you are permitted to argue dollar amounts to a jury, you should always do so. The jury wants and needs direction, and most advocates believe that only in rare instances should a plaintiff’s lawyer not suggest an amount. Either way, argue for a figure based on what you sincerely believe, not simply on the number of zeroes that look good on paper.
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Paul N. Luvera is the founder of Luvera Law Firm in Seattle. The author of five books and numerous articles, Luvera has obtained record verdicts in Washington, Idaho and Oregon, and has given hundreds of lectures around the county. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.
