Arguing Damages, Element by Element Part 1 – Dollar Amounts, Medical Expenses

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

1. Dollar Amounts

a. “Enough Isn’t Too Much”

It’s wise to lighten the Jury’s burden in pondering how damage awards will be administered. Here’s one way:

Eliminating Second-Guessing from the Jury’s Burden

“Don’t decide that ‘enough is too much.’ It’s your responsibility to determine damages, without worrying even a little about who ultimately might pay, or whether anything will be paid at all, or whether the law might make adjustments in the amounts. You have lots to do without worries like that. Don’t let them bother you.”

b. Small Losses May Require Big Damages

Talking about specific dollar totals––without tying them to the severity of the Plaintiff’s loss––can make the Jury’s eyes glaze. But continual emphasis on how impossible it is to truly compensate for the injury can put damages in a different light. Here is one way:

Putting Damages in Perspective

“I know it sounds like a lot of money. But don’t reduce it just because it’s more money than we’ve ever seen all at once. You know how I feel about our justice system. I admire it from the bottom of my heart. But it does have one limitation in a case like this. The only way our justice system has to restore what has been lost is through money damages. In a perfect justice system, we’d be able to give Peter back what he had before all this happened. I promise you, Pete would take it in a heartbeat. Think of what it would be like if we could watch Peter walk out of this Courtroom, whole and healthy. But we don’t have that power.

What we can do is translate human pain and misery––the kind of pain and misery that you’ve heard about in detail for the past two weeks––to dollars and cents. That’s the best our system can do. That’s the best you can do as a Jury.

Damages aren’t measured by what you take, but by what you leave. So let’s say you take $500,000 from a millionaire. He’s still got another half million, so you really haven’t hurt him too much, right?

On the other hand, if you take away the ability to eat normally, to go out in public places, to have a normal relationship with his wife, to earn a living, to carry on a conversation with friends, even to walk, or to shower, or to dress himself, if you leave Peter with the knowledge that his kids are ashamed of how he looks and smells, you have left Pete with no independence, no dignity, and precious little else.

We can’t put Pete back the way he was. The best we can do is compensate his horrendous loss with money. It’s hard to imagine any amount of money I’d be willing to trade for the kinds of loss that Peter endures. But money damages are our only aspiration to justice. They are all we have to offer.”

Loss of a Single Candle

“Let’s pretend a fire just broke out down the hall, and this Courtroom was plunged into darkness. Let’s say we’re all trying to control our panic, but we know we have to get out of here. Let’s say one of us has a little candle. Now one little candle isn’t much. But it would be enough to lead us out of here. Imagine the pandemonium if the candle was extinguished, and no one had a lighter or another match.

It’s not the size of the loss that’s important. It’s the importance of the loss. It’s the importance of a tiny candle flame to the people seeking safety. That’s what makes it so significant. The same is true in this Plaintiff’s case. It’s not the size of the loss, by any outside measure. It’s the importance of the loss to Peter Erikson, at so important a time, that brought us here today.”

2. Medical Expenses

a. General

Past medical expenses usually are the single most persuasive damage elements: Documentation is submitted without notes on whether bills are paid or unpaid, or whether the Plaintiff must reimburse any health insurance carriers. (A Judge’s instruction about insurance should allow such an argument.) Discussions about whether a lien holder requires repayment are disallowed both during testimony and in final argument. At the same time, the Jury should be informed that only facts about medical expenses that were allowed in should factor into the deliberations.

b. Future Expenses

The Jury needs assurance that the Plaintiff is not seeking a windfall nor even a profit. An analogy like the following sometimes is appropriate:

A Box of Money for the Future

“Let me give you a new way to think about this: Let’s say at the end of the trial, when damages are awarded, we put all the money in a box. The way we figure it, the box will be empty when Tiffany dies. If you put less money in the box, it may be empty before she dies.

We have an important request. If you decide to put less money in the box, don’t do it arbitrarily. You have the line item veto as you deliberate on these matters. Go through each item on the list and evaluate it. Do them one by one. Use both your head and your heart to decide whether Tiffany is entitled to that item. If she is, leave it in. If she’s not, take out that item and its corresponding cost. Please don’t do anything arbitrarily. Don’t let the box go empty before Tiffany dies.”

c. Offsetting Future Medical Care with “Family Care”

By trial time, often the family has adjusted to extraordinary levels of care demanded by the Plaintiff’s condition. Testimony usually outlines the details of that care. It is important to underscore that the family’s love, concern, and loss should not translate into an advantage for the Defendant. Here is one approach:

Valuing Love and Service in Plaintiff Care

“Dr. Defendant isn’t entitled to claim that because Alberta has become so good at taking care of her baby, the damages he pays should be diminished. Let’s say, God forbid, that next week, or even 20 or 30 years from now, Alberta breaks her leg or has a stroke or dies of total exhaustion. Let’s pretend Dr. Defendant has persuaded you not to award any money to compensate Alberta for the care she provides her daughter. We’ve learned the level of care that Lorena requires every single day. What would happen to Freddy if he had to hire professional home health care workers, people whose services are billed at $50 or $100 an hour or more, to give Lorena the help she needs, the help Alberta provides every day of her life? Even though no money changes hands, the care that family members provide has monumental monetary value.

Dr. Defendant’s negligence took Alberta’s freedom away. She’ll never watch her daughter grow and become independent. Don’t let Dr. Defendant profit because Alberta loves her child. Dr. Defendant already has taken away everything normal from Alberta. Don’t let him punish her for loving her child.”

d. Life Expectancy

A what if exposition is useful when presenting an argument for adequate coverage of future medical care. An injunction against “playing God” is effective:

Neutralizing Opponent Experts on Life Expectancy

“My Opponent wants you to believe that Timmy will die when he’s 10. My Opponent wants you to budget only enough damages to last another four years. If you go along with my Opponent, and Timmy does die when he’s ten, well, no harm, no foul.

Our Expert doesn’t agree. Our Expert says he can’t play God. He can’t say when Timmy will die. He doesn’t know whether Timmy will die when he’s 10, when he’s 70, or sometime in between.

If you believe us, and all of us are wrong, and Timmy does die next week or next year, then his estate will have more money than it needs. They won’t have their beloved little boy. But they’ll have some cash left over. On the other hand, if you believe them, and you award only enough money to take care of Timmy’s needs until he’s 10––and you are wrong, and Timmy could have lived until he was seventy––you will have sentenced him to death. Don’t play God. Don’t believe their Expert. He’s not God.”

To Part 2 → Mental Anguish, Pain and Suffering

Author: Jack McGehee (McGehee ⋆ Chang, Landgraf)