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CLOSING ARGUMENTS

Damages

There is a continuing debate among even seasoned trial attorneys on what is the best way to approach the jury in closing argument on the issue of money. I admit this can be a delicate subject. Maybe even more so in the less then profound cases. In the profound case the injury is obvious and devastating, therefore credible. When asking for money plaintiff's counsel run the risk of sounding greedy. No one likes a greedy lawyer. Worst the impact of that perception can fall upon your client. There are a number of approaches on how to cure this dilemma. And do note that the issue really appears only on the award for pain and suffering and other general damages. Special damages present far less of a problem. These are the product of the actual losses incurred for treatment, lost wages, prescriptions, toeing, repairs, mileage etc. All you need do here is add the numbers. But for the intangible general damages, the rules change. And there are some restrictions on what is or is not permitted in argument. For example, the Golden Rule prohibits arguments which ask the jury to place them selves in the shoes of the plaintiff. Questions like what would you like to receive as compensation are prohibited. One good case on this point is Simmons v Lowery 563 So. 2d 183. In this case during opening statement appellant's counsel asked the jury "to think about what you would pay someone for one day of what you will hear she has to go through and for the rest of her life." The attorney said this as he was explaining that the jury must assess damages. During closing argument the plaintiff's attorney reminded the jury that he had asked them to consider what they would pay for one day of the plaintiff's situation. At that point, defense counsel objected and requested a mistrial. After rendition of a favorable plaintiff's verdict, defense counsel moved for a new trial contending that the foregoing statements were impermissible golden rule arguments. While the trial court concluded that the statements were improper argument, we hold that they are not.

       "A golden rule argument suggests to jurors that they put themselves in the shoes of one of the parties, and is impermissible because it encourages the jurors to decide the case on the basis of personal interest and bias rather than on the evidence." Cummins Alabama, Inc. v. Allbritten, 548 So.2d 258, 263 (Fla. 1st DCA 1989). "To be impermissible, the argument must strike at that sensitive area of financial responsibility and hypothetically request the jury to consider how much they would wish to receive in a similar situation." Shaffer v. Ward, 510 So.2d 602, 603 (Fla. 5th DCA 1987).

        Rather than asking the jury what they might wish to receive as compensation themselves, appellant's argument asked the jury to do just what they must do--to determine how much to award or pay the plaintiff for her injuries. Appellant's argument merely asked them to consider this on a per diem basis, which is permissible and has long-standing use in personal injury trials. Rattner v. Arrington, 111 So.2d 82 (Fla. 3d DCA 1959); Perdue v. Watson, 144 So.2d 840 (Fla. 2d DCA 1962). The trial court thus erred in granting a new trial on this basis.

See also Leach v. Metzger 241 Md. 533, 217 A.2d 302 MD (1966) which stated

Although no Maryland cases have specifically so held, arguments, such as the one apparently made by appellees' counsel, which urge jurors to deal with counsel's clients as they would wish to be dealt with if they were in such client's position, are improper. The vice inherent in such argument is that it invites the jurors to disregard their oaths and to become non-objective viewers of the evidence which has been presented to them, or to go outside that evidence to bring to bear on the issue of damages purely subjective considerations, and resultantly courts in many other jurisdictions have deemed such ‘golden rule’ arguments to be improper.

One acceptable approach in asking for money is the per diem argument. This is essentially time and money. The argument goes like this; the plaintiff suffers this injury every hour of every day for the rest of his/her life. What is it worth per hour multiplied over the life expectancy. The product equals damages for those general damages. It makes sense, but some times when you do the math the product is so astronomical that it is shocking. So it may not be practical in every situation that is less then a profound injury.

Ultimately the law in Maryland states that for damages the jury must determine they are proven by a preponderance of the evidence and are reasonable and are not speculative. The jury is permitted to consider:

• the health and condition of the plaintiff before and after the accident,

• the permanent nature of the injury,

• the disability resulting from the injury,

• the extent to which the injury impacts employments, and

• other activities, as well as

• physical pain and

• mental suffering

and then allow a monetary award that is fair and just to compensate Adams v Benson 208 Md 261. As such evidence of depression following injury is evidence of mental suffering, pain medication is evidence of mental suffering as mental suffering naturally follows the existence of physical pain. See Timmons 133 A 322.