Anchors Away: Attacking Dollar Suggestions for Non-Economic Damages in Closings: Defense Counsel Should Use a Motion in Limine to Preclude Plaintiffs' Attorneys from Using Lump Sum or per Diem Computations to Jurors. (Feature Articles)
Rushing, Don, Lane, Linda, Bosman, Erin, Defense Counsel Journal
PICTURE THIS. John Doe suffers a serious and permanent leg injury. At trial, his attorney produces testimony from Doe and his healthcare providers regarding the chronic pain and disability Doe is suffering, as well as his treatment. During closing argument, Doe's attorney requests the jury award $100,000. Defense counsel argues that $50,000 is the appropriate amount, based on the evidence produced by Doe. The judge instructs the jury that it must award damages on the basis of the evidence. The jury awards $90,333.
No, this case was not tried to a real jury in an actual courtroom but to a mock jury as part of a study to determine the effect of requesting specific dollar amounts upon jury deliberations. (1) The study found that Doe's damages award increased as his attorney requested larger sums, although the evidence as to damages was unchanged. For instance, in response to a request for $300,000, the award was a mean of $188,462; to a request of $500,000, the award was a mean of $282,868; and to a request for $700,000, the award was a mean of $421,538. As part of the same study, a separate group of jurors was given the same factual scenario, but the plaintiff's attorney did not request a specific amount of damages, and the jurors awarded a mean of $167,812.
This study, and others like it, is more than an interesting academic exercise. Real life parallels are found in courtrooms across the country.
Kusisto v. McLean is one such example. (2) Kusisto involved an 18-year-old boy injured in a motorcycle accident. The boy sued, joined by his father, who brought a companion suit for his son's injuries. The boy suffered severe injuries, including the amputation of his leg at mid-thigh. Just before trial, the defendants conceded liability. The case went to the jury on the issue of damages. In closing argument, the attorneys for the boy and his father argued for a lump sum to compensate for damages, including pain and suffering. The father's attorney piggy-backed off of the closing argument of the son's attorney, telling the jury:
Mr. Steenbergh, as a competent and respected member of the Bar of this community, as this boy's lawyer, has asked for $750,000 for this boy and on the evidence which has been presented here I agree with him. It isn't any binding figure on you people. It is within your province to do what you feel is right. (3)
Swayed by the argument, the jury awarded $510,000 to the son and $32,500 to the father. Defense counsel made a timely objection to the use of argument for a specific sum in closing, and also appealed the court's denial of a motion for new trial.
On appeal, the New York Appellate Division held it was error for the boy's attorney to argue a lump sum and for the father's attorney to make himself an unsworn witness and render opinion testimony concerning a matter not in evidence. Despite this holding, however, the court did not reverse the holding because the trial judge gave appropriate limiting instructions. Instead, it modified the judgment and awarded a lower amount of damages.
Kusisto, as well as the mock jury study, illustrates the mischief caused by arguments by plaintiff's counsel for specific monetary sums for non-economic damages during closing. No objective test can assess the severity of a plaintiff's non-economic losses. No satisfactory measure can translate this type of harm into dollars. Jurors are given little guidance in how to determine a reasonable award for non-economic damages. Plaintiff' s counsel, without a factual basis for doing so, will fill this analytic void with the suggestion of an amount. Once such an argument has been made to the jury, defense counsel has no effective way to "un-ring the bell."
Arguments seeking specific monetary amounts for non-economic damages, by their very nature, are based solely on the opinions of plaintiffs' counsel. …