Arguing Damages, Element by Element Part 3 – Lost Earnings and Capacity, Physical Impairment
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.
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 5. Lost Earnings and Capacity
Equally uncomfortable for some Juries are considerations of “subjunctive” concerns like lost earnings and earning capacity, if only because when they are presented in a lump sum, lifetime earnings look like a huge amount of money. Once again, specific data in Final Argument, with special emphasis on earning capacity rather than an unpredictable future, can put some handles on the issue that aid the Jury’s work.
Calculating Lost Capacity and Earnings
“Income is expected to increase. Think of your own life.
Today, all of us have trouble living within our means. But we also have trouble living within our credit cards.
Today you can go broke just by staying even.
Things that cost a few hundred dollars just a few years ago cost that much to repair now.
Twenty years ago, it took two people to carry $15 worth of groceries. Today, a child can do that.
You heard what my Opponent asked you to do. He asked you to focus on earnings in 2008 dollars. That’s cold calculation. It would also be misapplication of Texas law. Capacity is a tough concept. It’s hard for us to get our arms around it.
Computers don’t give us much help. It takes sensitive human beings to grasp that a healthy body and a good job translate into more than a W-2 at the end of the year.
Computers can’t figure out what will happen when degenerative changes set in. The financial implications don’t show up on the bottom line, at least at first. Can we expect Frank’s employer to carry him forever? When will his boss’s loyalty wear out? When will his sorrow and pity wear thin? When will Frank’s injury become a distant memory?
Remember, when we talk about earning capacity, we’re talking about the future. What kinds of opportunities would Frank have earned for advancement, better pay, better benefits? When Frank’s spine was shattered, his future was shattered, too.
Before his back was broken, Frank was free to ply his trade anywhere. Now his freedom of choice is gone. Before his back was broken, Frank’s ambition was an asset. Now there are some who say that since he works a little, since his wholesome pride requires him to do what he can, he shouldn’t be compensated for the difference between his future earning capacity before and after the accident. That’s what my Opponent told you.
You know what? That’s baloney. Most people with the severity of Frank’s injury would never bother to get out of bed again. But my Opponent wants you to punish Frank for his courage and decency in working as much as he can. If you do that, you’ll be telling the malingerers they are smarter than Frank. And you’ll be telling Frank that the Defendant can hurt him twice, with the blessings of the American justice system. That wouldn’t be right.
I’ll tell you one thing: I’d rather represent a Plaintiff who shouldn’t work, but tries, than a guy who could work, but doesn’t.
I know that when we talk about lifetime losses, we talk about numbers with a lot of zeroes. But they wouldn’t look so big if we chopped them down into weekly paychecks. It wouldn’t look like so much if we looked at it year by year on an IRS form. I know this for sure: If Frank had his way, he’d be looking at that lifetime stack of cash in tiny little piles, one paycheck at a time, from the old job he loved so much. It wouldn’t look like so much cash if we were looking back at it from the other end of Frank’s life. It wouldn’t look like so much if Frank had climbed his professional ladder the way he dreamed he would.
You know, this is it, folks. This is our last chance to talk with you about these things. This is Frank’s last chance. We can’t come back in a few years to ask you to reconsider. What you do in that Jury Room will impact Frank’s life, every single day, for the rest of his life. What you do in that Jury Room is Frank’s last chance for justice.
Let me remind you of a couple of facts. You heard me ask the Economist to keep his calculations low. I asked him to assume only Frank’s high school diploma, not even the college degree he was working on in night school. I asked him to assume that we’d have no inflation at all for the rest of Frank’s life. I even asked him to assume that the wage rates for handicapped people are the same as those for the able– bodied. And I asked him to reduce everything to ‘net present value.’ It’s important for you to understand how these calculations were made, so that you understand how far we’ve bent over backward to be conservative.”
Part 6. Physical Impairment
Physical impairment deals with damages beyond the ability to earn a living, and centers around details of the Plaintiff’s loss: what the Plaintiff is now versus what his life was, or would have become. A per diem approach, similar to the “death” arguments below, can be tailored effectively to fit a physical impairment argument.