Arguing Damages, Element by Element – Part 4

Arguing Damages, Element by Element Part 4 – Death

The man who is to be in command of [effecting persuasion] must, it is clear, be able to reason logically, to understand human character and goodness in their various forms, and to understand the emotions that is, to name them and describe them, to know their causes and the way in which they are excited.

–Aristotle, Rhetoric

For damages, do not show that money will make the injured person’s life easier; rather, show how money will provide that wheelchair-equipped car so that the injured person can return to the safety and companionship of society. Below are several approaches that I have used, and some would say worked for me.

Damages Arguments That Work

Part 1: Dollar Amounts, Medical Expenses

Part 2: Mental Anguish, Pain and Suffering

Part 3: Lost Earnings and Capacity, Physical Impairment

Part 4: Death

Part 5: Sympathy, Disfigurement

Part 6: Gross Negligence and Punitive Damages

Part 7. Death

a. Per Diem Argument

This approach calculates loss on the basis of a given amount of money, per day, for a designated period of time. The Jury is given tools to evaluate a day rate compensation plan for suffering, then to multiply the day rate by the number of days in the time period. A per diem argument is best suited for survivors’ pain and suffering after the death of a loved one:

Taking the Loss a Day at a Time

“I can’t bring you a Human Appraiser. There’s no such job description. It’s up to you to decide how to compensate Teddy’s Dad for each day he must live without his boy. We are asking you to compensate him day by day, because that’s how Joe lives with his pain. For example, when you filled out the Jury forms, you were asked how many children you have. How should Joe answer that? Five? Four alive and one dead? Sometimes Joe sees someone who hasn’t heard about Teddy’s death. The old friend, whom Joe hadn’t seen in a long time, might ask how Teddy is doing in Little League. It happens every day, in some way or another. Joe’s damages should be calculated day by day, because that’s how he suffers his loss. Your job is tough. I know that Juries appreciate suggestions from us, with specific numbers to consider. I’ll give you some, but you’re not bound by them. If you think my suggestion is too high or too low, on the basis of the evidence, it’s your right to raise or lower it. What’s my per day suggestion? $200. Their Expert makes more than that an hour. The tables say that Joe probably has another 27 years to live. So we’ve taken those years and multiplied them by $200 a day. It comes out to $1.9 million. You might think he should get less. You might think it’s not enough. Think of what you know about Joe. If there were a fire and Joe could save only one thing, would it have been a bag with a couple of million bucks in it, or would it have been the son he loved? No question. The cash would go up in smoke. But you already knew that. Maybe you’ve lost a child. I hope you haven’t. But your empathy can help you gain a sense of what it might be like. Joe says that outliving his son has changed him forever––and (if our children are our ties to immortality) forever after. Joe is afraid that people will forget what a wonderful little boy Teddy was, that he’ll turn into a statistic, and then it will be as if Teddy was never here at all. That breaks Joe’s heart. Let your verdict tell the world that Teddy was a wonderful little boy. Tell them that Teddy’s death is your loss, too. Tell them Teddy mattered. Tell them he was valuable and gallant. Tell them that Teddy would have made the world a better place if he’d been allowed to grow up. Tell them you admire how his mom and dad were raising him. Tell them Teddy will be missed. Tell them it is an unnatural tragedy when parents outlive their kids. Tell them that the break in immortality’s chain breaks our hearts, too. Tell them.

You can give Teddy the respect he deserves. You can give him more respect than Dr. Defendant did. You can tell Dr. Defendant what he forgot to notice: that Teddy mattered. Only you can tell him in a language he can understand. Tell him.”

b. Value of a Human Life

Putting a price tag on human life is a daunting task. Comparisons like these help launch the Jury’s thinking:

Valuing a Human Life

“What’s your life worth? What’s my life worth? What’s anyone’s life worth? If we sent out a search for the expendable American, I doubt if we could find one. Our society doesn’t work that way.

Americans place a high value on human life. Look at the space program. How many billions of dollars have we spent to be sure that every space traveler comes home, safe and sound? Why? Because the value of human life is enormous.

When someone is lost at sea, we don’t ask who the person is, or whether he’s important enough to save. We dispatch a lifeboat, call the Coast Guard, sometimes even air support. Why? Because the value of a human life is enormous.

When a multi-million dollar military plane is in trouble, the pilot is ordered to eject, to let the plane go, to save himself. Why? Because in the United States of America, human life is more valuable than a multimillion-dollar fighter jet.

We have people who devote their entire professional careers to protecting the lives of total strangers– –cops, firefighters, rescue personnel. There is fire and rescue equipment in every public building, costing millions and millions of dollars. Most of it, God willing, will never be used. But no one begrudges the investment. Why? Because the chance to save a human life is worth millions and millions of dollars. Why? Because the value of human life is enormous.

When you offer the Plaintiff damages of $3 million, her troubles won’t be over. But you will have said something important to her and to this community. You will have told her that the value of her human life––just like that of every American––is enormous.”

c. Death of a Parent

It is useful to indicate by implication the value of human relationships, with seemingly small examples that imply the wider scope. The abstract essence of the relationship is portrayed best by discrete and concrete examples:

Outlining the Loss: The Death of a Dad

“Maybe some of you are old enough to remember the 1980 Olympics. I’m a hockey fan and I’ll never forget it. Somehow the U.S. team made it to the finals against the invincible Soviet team. The Soviets had even beaten the NHL All-Stars. That game was supposed to be the worst mismatch of the 1980 Games.

Do you remember the hysteria when we won? ‘Believe it. The dream has become reality.’ People swarmed onto the ice to celebrate with the new American heroes. Cheering. Hugging. Joy. Jimmy Craig was our goalie. He skated away from the celebration to scan the stands. A lone cameraman followed him, with a tight shot of his face. I read his lips as he looked up into the crowd. I saw him slowly say, ‘Where’s my Dad?’

It wasn’t the victory that filled that young man’s heart. It wasn’t the medal, his teammates, the sport, or even the flag. What filled his heart was that he wanted to share that moment with his Dad.

Maybe Tom won’t be a sports hero. But he’ll have lots of celebrations along the way, lots of moments filled with emotion, sometimes even triumph. And when he scans the stands, when he says, ‘Where’s my Dad?’ what will we say to Tom?

“Billy Graham tells the story about a child striding through the snow like this [sweeping, contemplated steps]. Rev. Graham said he asked the little girl why she was walking that way. ‘I’m trying to walk in my Daddy’s footsteps,’ she responded.”

George Chandler from Texas argued the value of a parent’s life this way:

“All of us know what it’s like to climb Trouble Hill. I climbed it when I was 17. It was hard. I got close to the top, tripped, and almost fell down. I climbed it again when I was 24. I ran into a real catastrophe. I made it okay, but only for one reason. I have a Daddy who was there to look after me. But this little boy will climb Trouble Hill all alone.”

Outlining the Loss: The Death of a Mother

“What does a child say when he gets hungry? When he wakes up from a bad dream? When he skins his knee? When he’s scared? I’ll tell you what he says. He says, Mommie! When Christopher wakes up from a bad dream, who will he call? And who will respond?

We know all about tough little kids. I thought I was pretty tough. I certainly tried to make it seem that way. But my mom is responsible for every good quality I have. And you know why? Because even tough little guys really talk to their moms in a way that they can’t talk to their dads. There’s a magnet on our refrigerator that says, God couldn’t be everywhere, so he invented mommies. I’ve been thinking about this since I met Christopher, and about the things I could say to my Mom, and to no one else. Things like:

‘Mommie, will you tuck me in?’ (In a hundred years, I wouldn’t say that to my Dad!)

‘Mommie, I don’t feel good.’

‘Mommie, I’m scared.’

‘Why do you love me, Mommie?’

‘Mommie, are you there?’

‘I love you, Mommie.’ His relationship with his mom is the most valuable one a boy can have. It makes us what we are. Who will Christopher talk with? Who will help Chris grow into a strong and loving, decent and honorable, gentle and stalwart young man?”

d. Death of a Child

The death of a child is so difficult to ponder that, once again, it’s useful to offer some specifics for the Jury to grab. The following paragraph speaks volumes:

Outlining the Loss: The Death of a Child

“There are 18 words that Michael will never say:

‘Dad, can we play catch?’

‘May I have the next dance?’

‘Will you marry me?’

‘That’s my kid!’

Michael will never say those words. That’s the tragedy.”

i. Thanks for Everything

When death has been abrupt and closure is impossible, it’s important to point out that ragged emotional edges are acutely painful. Here is one approach:

Highlighting the Chance to Say Important Things

“My daughter is the most magnificent and marvelous child who ever lived. But you might think she’s a lot like most other brilliant, beautiful, gracious, terrific young women. That’s how we are with our kids. Even when they’re eight or nine and are beginning to try their own wings. Even when they’re early teenagers and think their parents are pretty embarrassing. Jenny did something I’ll never forget when she was about 19. It was one of the best moments of my life. She walked up to me, looked me in the eyes, paused to think for a moment, and then said these words: ‘Thanks for everything, Daddy.’ Then she kissed me on the cheek.

She didn’t mean, thanks for today. Or, thanks for this week. Or, thanks for the things I bought for her. She meant thanks for everything. It was an important moment. And we both knew it.

Brian didn’t get a chance to go up to his Dad, to look him in the eyes, to pause, to think for a moment, and then to say, ‘Thanks for everything, Dad.’ He was too little. Now he will never have the chance.”

“As we age, we have the right to die with dignity. My own Dad is aging. He knows he will die soon. Not long ago, I walked up to him, shook his hand, and sincerely thanked him for being such a terrific father. Then I hugged him. No matter what happens, no matter when it happens, he knows that I know what he sacrificed to be my dad. He knows I am grateful. That gives us both the sense that when my father goes, he’ll die with dignity and with many of the important words said.

Tom and Rick didn’t have that chance. They didn’t have the chance to go up to their Dad, to look him in the eyes, and to thank him for being their Dad. He couldn’t die with that dignity, comfort, and gratification. The boys didn’t know––he didn’t know––that he was about to die. He didn’t know that his doctor would spend tens of thousands of dollars denying his own actions and inactions. He didn’t even know that you 12 good people would be asked to decide what happens next.”

e. Early Death of a Terminal Patient

It’s a puzzlement to me why we are so eager to place a higher price tag on a younger life than an elder one. Apart from the obvious disparity in future wage-earning capacity, it is appropriate to plant seeds to offset the Defense’s likely allegation that the death of an elder Plaintiff is a lesser loss than a younger one:

Recalculating the Value of Time

“To a dying man, three months is a lifetime. When you know you’re dying, each day is a miracle with another chance to study the way your wife’s eyes shine when she smiles. You can listen to the birds outside your window. You can see the rise and setting of the moon. You can notice what a joy it is to be alive. And maybe you take time to talk with your Creator about how much you love His gifts. Three months might not seem like a lifetime to anyone else. But it is to a dying man who has 90 days to live, to learn to laugh, to say thank you, and to say, I love you, to the people who have made his life worthwhile.

My Opponent will say that after 67 years, three months doesn’t make much difference. Losing those 90 days doesn’t stack up very high against the 25,000 days that went before. But we know differently. Those 90 sunrises, those 90 bird songs, those 90 moon miracles, those 90 I love you’s can make all the difference to a dying man and the people who love him. They should not have been thrown away without a thought.

And who are all these old people? They are the ones who shaped for us the finest society that ever walked the earth. They made us the strongest, smartest, and most successful people in the world. They spilled their blood to keep us free. Even when they were hungry, they danced to the best popular music any generation ever created. They were generous and uncomplicated, gallant and funny, sane thinking, hard-working, honest and true. They loved us so much they stood us up on their strong shoulders to get a better view of the world. They taught us everything we know. What do we say to them now? Your time is up? We owe them more than that. We owe them more.”

“Imagine a simple gold wedding band. It was your great grandmother’s. Your grandmother wore it for decades. Then it was your mother’s. Now it’s yours. It has touched everything important in your family for four generations. You probably could get about 30 bucks for it, if you sold it for scrap. But to you, it’s priceless. Think of the family piano. Or granddad’s chair. What are they worth to you?

If antiques are valued more because of their age, because of what they represent to us, because of how long they have been with us, why not people? Are people’s lives worth less because they are old? Why might my Opponent think so?”

To Part 5 → Sympathy, Disfigurement

Author: Jack McGehee (McGehee ⋆ Chang, Landgraf, Feiler)