Features
Make
time palpable by using per diem arguments
A
well-crafted per diem argument, when allowed by the jurisdiction where
you practice, lets jurors see and feel what a difference a day makes
to a client in pain.
Thomas
J. Vesper and Richard Orr
Most trial
lawyers know that showing is often better than telling. This
maxim is particularly important when making a per diem damages argument,
because a visual aid is a descriptive way to explain intangible or
noneconomic damages to a jury. These damages include pain and suffering,
disability and disfigurement, and loss of enjoyment of life.
A
per diem argument asks the jury to award the plaintiff a certain amount
for each year, month, week, or day of suffering since the injury.
It also takes into consideration future damages based on the plaintiff's
life expectancy.1
To
make a per diem argument, you assign a specific economic value to
the plaintiff's noneconomic loss; say, $50. You then multiply this
amount by the amount of time the plaintiff experienced and will continue
to experience the loss—for example, two months, or $50 x 60 days.
The result—in this example, $3,000—represents the amount
the jury should award.2
Only
37 states and the District of Columbia allow plaintiff lawyers to
either present a bottom-line amount for noneconomic damages or suggest
that a specific time unit be used to calculate them.3 In five of these
states—Florida, Montana, Nevada, Utah, and Washington—the
decision to permit a per diem argument is solely at the discretion
of the trial judge. In some of these states, like Maryland, the argument
can be used, but the court must give the jury a detailed, cautionary
instruction that the aggregate amount sought is suggestive and not
evidentiary or binding. In three of these states—Arizona, South
Dakota, and Wisconsin—an aggregate or bottom-line amount can
be suggested, but a per diem argument cannot be made.
Courts
in 13 states apply the Botta rule, named after the New Jersey
decision in Botta v. Bruner, which prohibits plaintiff attorneys
from mentioning a bottom-line dollar amount for noneconomic damages
or suggesting that a jury apply a per diem formula to calculate them.4
Courts
in most of these jurisdictions have held that the Botta rule
does not apply to wrongful death actions, because the measure of damages
in these cases (pecuniary loss to next of kin) is economic and therefore
susceptible to a mathematical computation. Plaintiff counsel in these
cases may explain to the jury in summation how actuarial tables work
and how a self-depleting fund adequate to produce a stated income
over a specific period could be calculated.5
Some
of these jurisdictions have also softened application of the Botta
rule in certain situations. For example, plaintiff counsel might be
allowed to argue that the jury should use a time unit—"Use a
week of pain to evaluate this case"—to calculate damages, but
the lawyer would be precluded from suggesting that any dollar amount
be applied to the time unit.6
Courts
in jurisdictions where per diem arguments have been ruled improper
often justify the policy by claiming that they
· have
no basis in evidence because no witness can testify to the value of
a plaintiff's pain and suffering.
· invade
the province of the jury.
· give
a false sense of certainty to an uncertain subject: The value of pain
and suffering, unlike lost income and medical expenses, cannot be
determined by mathematical computation.
· may
result in excessive verdicts.
Courts
in most jurisdictions that allow these arguments say that they
· do
not introduce improper evidence, but simply allow proper inferences
from the evidence concerning the nature of a plaintiff's pain and
suffering.
· are
as much within the jury's province as is urging jurors to find negligence
or liability.
· give
jurors much-needed help in accomplishing the nearly impossible, but
necessary, task of assigning a dollar amount to a person's pain and
suffering.
· are
subject to safeguards, such as cautionary instructions by the trial
judge, to prevent the jury from being misled.
· are
unlikely to exaggerate the amount needed for adequate compensation
because plaintiff counsel know that doing so could provoke an adverse
jury reaction.
· are
not the final say—courts can reduce an award that seems excessive.
The
vision thing
If
you use a per diem argument, remember to show as well as tell. Illustrate
each item of damages to help guide the jury in preparing its final
audit for the plaintiff.
One
way to do this is to make a "laundry list" of economic and noneconomic
damages. (See Form A, left.) Another possibility is to list past and
future damages separately. (See Form B, page 63.) You could also make
a similar itemized list representing a spouse's or child's loss of
consortium. (See Form C, page 64.)
To
calculate the per diem amount, first decide on a fair and reasonable
amount of compensation and work backward. For example, if your client
would need $300,000 to be made whole, then divide that by the time
the client has and will continue to suffer, say, 43 years or 15,705.75
days. That works out to about $19 a day, using the common multiplier
of 365.25 days.
Communication
experts tell us that people see and respond more quickly to images,
especially colored ones, than they do to black-and-white symbols like
written words.7 A strong, logical, and empathetic per diem argument
is more effective when it is supported by visual cues.
You
can prepare a visual representation simply and inexpensively from
materials in your office. If you don't have what you need, you can
probably find it at a local hobby shop or nearby stationery or drug
store.
For
example, you can make a display showing units of time by using the
"enlargement" feature on your office copier. Simply enlarge and reproduce
a wall calendar for each of the past and future years of your client's
pain and suffering. Displaying a series of these calendars—each
one representing days of torment for your client—can make a huge
impression on a jury.8
If
you need to show a relatively short period of time, consider using
enlarged copies of a page-a-day desk calendar. Use 120 individual
calendar pages as a display to show four months of pain and suffering.
Or you can prepare one three-ring binder as an exhibit, or one three-ring
binder for each juror. The binders should include a list of significant
dates in the client's and his or her family's past and future. Each
page might represent one month or year, with attachments. These "yearbooks"
might include births, years of education or employment, a time line
of past and future treatments, hospitalizations, and past and future
damages—any tangible evidence that can illustrate and highlight
your client's losses by emphasizing the passage of time.
Another
way to make the passage of time more palpable to jurors is to give
them some historical perspective. Simply telling a jury that many
things have changed since 1964 is unlikely to elicit much emotional
response. But saying that 38 years ago the Beatles made their U.S.
debut on The Ed Sullivan Show, the average automobile cost
$3,000, and the average home cost about $15,000 will make the passage
of time seem more real.
Older
jurors who may remember historical facts from their own lives are
more apt to "feel" the passage of time by recognizing how much has
changed in recent decades. Even young jurors will have a stronger
emotional response to a then-and-now comparison than to a mere statement
that much time has passed.
Sources
that can provide historical perspective include encyclopedia yearbooks;
"This Date in History" columns in newspapers like the New York
Times; the archives of Time, Newsweek, and Life
magazines; and nostalgic news reports on TV. The Web site www.yesterdayland.com
provides many facts and articles about life in days gone by.
But
even a relatively short period of time—a few years—can be
an eternity to a client suffering unspeakable loss or pain. To convey
how slowly time can seem to pass, compare the period of time in question
with a historical event that lasted as long. For example, our country's
participation in seemingly interminable wars—World Wars I and
II and the Korean conflict—each lasted less than five years.
To
say simply that someone has a life expectancy of five years, or that
a client's pain and suffering lasted "only five years" is to minimize
or ignore the days (1,826.25), hours (43,830), and minutes (2,629,800)
that pass slowly for a person in pain. Emphasize that during this
time, special moments and precious joys were lost—experiences
that can never be recovered.
If
the client is young, impress on the jurors how long a year can seem
to a person who lacks the perspective of having lived a long life—four
years is a quarter of a high school student's life. If the client
is elderly, underscore how precious time can be to people who are
in the twilight of life.9
Cautionary
tales
Some
jurisdictions allow plaintiffs to request a special jury verdict form
or questionnaire, rather than a general verdict form. A special verdict
form asks the jury to itemize damages, because it allows the categories
to be awarded. For example, the form might ask what amount of money
is fair and reasonable for past lost income; future lost income; past
medical expenses; future medical expenses; and past and future pain,
suffering, disability, and loss of enjoyment of life. This is an effective
tool to help the jury fairly estimate the component parts of a damages
request.
But
be careful how you create this form. Writing a unit of time and a
dollar sign next to a blank line indicating where the jury should
write the figure for a noneconomic damages award may constitute an
im proper suggestion in your jurisdiction.
In
one case, a per diem argument came close to being ruled improper:
Plaintiff counsel told the jury that a doctor had been paid $176 to
stop pain during the plaintiff's surgery. The lawyer then asked the
jury what the plaintiff's pain was worth—"A dollar a day, a dollar
a week?"
The
Wyoming Supreme Court held that although this was "seriously close"
to constituting an improper unit-of-time argument, it fell short because
it did not ask the jury to assign an arbitrary monetary figure to
pain and suffering and then multiply that amount by a specific unit
of time. The court affirmed the plaintiff's verdict.10
Wherever
you practice, it is wise and courteous to advise the trial judge and
your adversary, before trial—and certainly before your final
argument—that you intend to make a per diem argument. The judge
may want to give the jury special instructions, or in some states
where per diem arguments are allowed, a judge may exercise discretion
and deny you the right to argue a per diem formula. It is always best
to learn before trial a particular judge's courtroom custom and standard
jury charge on per diem arguments.
Closing
argument is your last opportunity to persuade jurors. Remind them
that this is the only chance your client has to recover fully and
fairly for the injuries sustained. Every plaintiff who proves liability
is entitled to a full, fair, and—if the facts warrant it—substantial
award. When allowed by the court and the laws of your jurisdiction,
a persuasive per diem argument that includes powerful visual images
can help ensure that your client receives just compensation.
Notes
1. David
R. Lee, Pain Analogies for Closing Argument, 16 N.M. TRIAL
L. 165 (1988), at 165; See also JOHN A. TARRANTINO & PATRICIA
K. ROCHA, ESTIMATING AND PROVING PERSONAL INJURY DAMAGES §143.1
(1991).
2. 75A
AM. JUR. 2D Trial §561 (2002).
3. The
jurisdictions that allow either a bottom line or per diem argument
for noneconomic damages are: Alabama, Alaska, Arizona, Arkansas, California,
Colorado, the District of Columbia, Florida, Georgia, Hawaii, Idaho,
Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota,
Mississippi, Montana, Nebraska, Nevada, New Mexico, New York, North
Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South
Dakota, Tennessee, Texas, Utah, Vermont, Washington, and Wisconsin.
4. 138
A.2d 713 (N.J. 1958).
5. See,
e.g., Paradossi v. Reinauer Bros. Oil Co., 146 A.2d 515 (N.J.
Super. Ct. App. Div. 1958).
6. N.J.
COURT RULE 1.7-1(b) (amended 1982).
7. Brian
J. Panish & Christine D. Spagnoli, Take Technology to Trial,
TRIAL, July 2002, at 39.
8. JIM
D. EVERETT, MODERN TRIALS (2d ed. 1982).
9. See,
e.g., Thomas Vesper, The Underestimated Plaintiffs: Proof and
Argument of Damages in Cases Involving the Elderly, TRIAL LAW.,
Nov.-Dec. 2000, at 488.
10. Combined
Ins. Co. v. Sinclair, 584 P.2d 1034 (Wyo. 1978).
Thomas
J. Vesper practices law in West Atlantic City, New Jersey. Richard
Orr is a lawyer in Mount Holly, New Jersey.
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