Arguing Damages, Element by Element – Part 6

Arguing Damages, Element by Element Part 6 – Gross Negligence and Punitive Damages

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 11. Gross Negligence and Punitive Damages

In presenting the purpose of “gross negligence and punitive damages,” it’s important to make it clear to the Jury that we are taking the spotlight off the Plaintiff for the moment, to shine it squarely on the Defendant’s malfeasance. It is equally important for the Jury to understand that this function will serve also to alert the Defendant’s negligent colleagues that our society finds such impropriety intolerable.

Spotlighting the Role of Punishment

“This conversation about damages is different from the ones we’ve had before. Now we’re not talking about money to compensate Carol Parker’s injury, or to cover her past or future care. We’re talking about a different purpose for damages. We’re talking about damages to punish Dr. Defendant for what he did and what he failed to do.

This is a civil court. It’s different from a criminal court. In a criminal case, when a Defendant is found guilty, ordinarily he goes to jail. That’s a message to him and to others like him: ‘Listen up: What you did was totally unacceptable. You may not render this kind of injustice. You’ll be punished.’

Civil courts don’t send people to jail. But you will figure out what it will take to get Dr. Defendant’s attention––and the attention of physicians like him. It’s up to you to decide how to punish Dr. Defendant for what he did to Carol.”

a. An Award with a Pinch

When calculating punitive damages for a Defendant corporation of enormous wealth, it’s helpful to give the Jury a framework for thinking about a proportional award to serve the punitive purpose. Sometimes a visual aid helps. For example, for a Defendant corporation with a $9.4 billion net worth, I made a blowup consisting of 9,400 little M’s to represent $9,400 million. I made a similar blowup with 9,378 little M’s––22 fewer than the original––to represent the reduction of a $22 million punitive damages award. The visual evidence gave the Jury the opportunity to assess the size of the award versus the size of the Corporation’s net worth. When the visuals were side-by-side, it was virtually impossible to discern a disparity between them.

Offering Perspective with a Car-Towing Analogy

“These big numbers are tough to figure, if you ask me. So I brought it down to a realm I can understand. Let’s say I’m a guy making $35,000 a year. Let’s say I don’t notice the sign and I leave my car in a spot marked as a hospital zone. And when I came back, my car has been towed. So I go over to the pound and I have to come up with $150 to get my car out of hock. At my level, $150 is nothing to sneeze at. I’ll be more careful parking next time I visit someone in that hospital. But I’ll still be able to feed my family, even after bailing my car out of the pound.

I did the math. The impact that $150 towing fee will have on my overall economic picture at 35-grand a year is exactly the same impact as our request for $22 million in punitive damages will have on the Defendant Corporation’s finances.”

b. The Medical Wake-Up Call: A Visiting Prophet

It’s useful to reiterate the value we, as a society, place on the life of an individual. Another literary allusion has served this purpose well:

Pointing to the Wisdom of The Idiot

“I guess there’s a reason why classic literature is called ‘classic.’ I reread Dostoevski’s The Idiot a while back and was impressed, all over again, with the kind of universal truth we can find in literature like that. Do you remember The Apostle?

I got to thinking about what it would be like if we transferred that situation from 19th century Russia and put it in 21st century Texas. Let’s suppose that someone came down from the heavens to Harris County, with a promise to solve every health care problem we have. Now doctors will pay more attention. They’ll respect their patients. They’ll really listen, for a change. They won’t breeze in and out as though they have more important things to do than take care of their patients. Our chances for good medical care go up substantially. Our fear level goes down.

But there’s a hitch. Before this medical miracle is pulled off, we’re asked to pay for it––with the life of a child.

Who would agree to that? No one could possibly agree that it’s a fair trade, no matter how wonderful it would be to have all of medicine’s problems solved. We’d have to turn down the deal. A human life is too precious.

Now, let’s talk about reality. We’re in precisely the opposite position. We already paid the price for that reform. We’ve already lost that precious child. Will we make something positive out of that tragedy? The answer is in your hands.

Will you use this opportunity to send a wake-up call, to send a shock wave, to the medical community? If you don’t, Tony’s death will have been for nothing.

A little guy named Tony has changed us all, I think. I never even got to meet him. But I can tell you this: The message of his story is with me all the time. I think about how frightened he must have been in those last few hours. His mom was with him. And his dad. But he still must have been so scared. When I put myself in his parents’ position, I can’t even imagine how scared they must have been to watch their little boy fade away from them.

Tony’s dad tells me that Tony could still respond to sound and touch early in his coma. Later, his Dad said he thought he was still trying to respond at some level, but he thinks it might have been just a neurological response. They all must have been so scared.

When Tony passed the threshold from life to heaven, fear was replaced for him by eternal peace. And somehow Tony’s communication was transformed from a message of fear to a message of hope. Maybe Tony didn’t die in vain. Maybe Tony’s death can make the medical system better for the next child who comes along. Maybe the medical community will notice Tony. Maybe they finally will feel the importance of his message. Maybe they’ll want to make certain there will be no more tragedies like Tony’s.

They won’t listen to Tony without your help. Can you help Tony communicate his message of hope? Can you get their attention so that Tony’s legacy is a medical system that changes because of him? Can you keep Tony’s message of hope alive? It’s up to you. And only to you. It’s up to you.”

c. An Insurance Company’s Bad Faith

In arguing a case surrounding a health insurance company’s failure to live up to a contract, logic and fair play approaches work well.

Pointing to Terms of Agreement in Insurance Contracts

“I’ll tell you one thing. If the tables were turned, this insurance company wouldn’t be saying the contract they signed with Laura was open to interpretation. If Laura didn’t hold up her end of the bargain, if she didn’t pay her monthly premiums, let’s say—even if she had a good lawyer and a good excuse––they wouldn’t be willing to listen to any reasons why they should continue her coverage.

But when Laura got sick, that’s just what this company did. They treated her as if her injury wasn’t real, as if she didn’t have the needs we all have to eat, to see a doctor, to get the tests and treatment that her doctor prescribed, to maintain some human dignity.

Laura is a lovely lady. You’ve been able to see that. But this case doesn’t center around her being a lovely lady who needs your help. This case is about a contract that has been broken by an insurance company.

We would still be here to talk about that broken contract if the Plaintiff were a terrorist hijacker instead of a lovely lady. When somebody breaks a contract and breaks a legal promise, the law has something to say about that.

The insurance company took Laura’s premium dollars every single month. Laura wrote those checks because she believed them when they promised that, in exchange for those checks, she’d be safe in their good hands any time she got sick.

When she did get sick, Laura learned what they were really saying in those slick commercials. They were saying, ‘Hey, Laura, we’ll cash your checks while you’re healthy, vibrant, and able to work. But if you ever get frail, if you ever get sick, we’re outta here.’ That’s a broken promise. A broken legal promise.

Laura told the truth on her insurance application. You heard the testimony. The insurance company knew everything there was to know about her. And they agreed to take her money. They made all those promises. They cashed all those checks. Right up until the moment Laura asked them to hold up their end of the bargain. And they were outta here.

Laura comes to this Courtroom through a portal of pain. The insurance company comes because they want you to excuse them for cashing all those checks and breaking their legal promises.”

d. Considering Insurance, Other Factors

Of course, it is improper for the Plaintiff to suggest that insurance is available to pay any judgment. It is equally improper for the Defense to argue that the Jury should consider the effect of its judgment on the Defendant’s personal net worth. This approach works well:

Letting the Jury off the “Guessing” Hook

“We’ve talked about the Jury charge. Answering the questions on that charge is all you need to worry about when you sit down together to deliberate. I can assure you that the questions will be straightforward and specific.

For example, there will be no question that asks you how much the Defendant can afford to pay the Plaintiff to compensate his negligence. There won’t be a question like that.

There will be no question that asks you to estimate the size of any Defendant’s bank account or stock portfolio or what his house is worth. No one will ask you how the Defendant will come up with the money. You don’t have to worry about that, either.

If you focus on the damages, you will be doing your job. If you focus on the damages, the American judicial system will be working. If you focus on the damages, justice will be served.”


After reading these different approaches to arguing damages, I hope it has become evident that there is no silver bullet, and trial advocacy continues to be an art. We must not, and cannot, rely solely on one method of persuasion. Craft the narrative based on your case, not on a specific damages argument.

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