Closing Argument for Pain That Is Not Constant

This month’s Brushstroke takes a look at how to approach your closing argument on damages.

Here is a sample:

Start with my permanent injury analogy: “A permanent injury means it’s gotten as good as it’s going to get and it’s not going away; it’s forever. It’s like waking up with a crick in your neck — only there is no hallelujah.” (If you don’t know it, look on page 303-304 of my book. I’ll fill in these two pages).

Then, follow up with something like this:

Mrs. Jones was living her life with very little discomfort in her back, until the defendant slammed into her from behind. The injury caused her a great deal of pain and discomfort. It cost a lot of money to get her rid of the intense pain the crash and damage to her body caused. Now, she is left with a significant amount of discomfort for the rest of her life. It did not occur naturally. It was thrust into her life unnaturally, by no fault of her own, because the defendant was not doing his job on the road that day, endangered the motoring public. (This is important to distinguish your client’s injury from the aches and pains your jurors feel, for which no one gave them money.)

One of the things that makes our country great is Justice the American way. We don’t believe in eye-for-an-eye justice; that’s barbaric. We also don’t believe in turning a blind eye to justice, saying tough luck; that’s no justice at all. We believe in consequences and responsibility. When someone harms another, because they weren’t doing what they were supposed to be doing, we hold them accountable. It’s called a “remedy.” That’s why we are here, pursuing that remedy, under the American way of justice. (This is for the Trump people on your jury.)

It is important to keep in mind, it is not about how much she’s going to get, it’s about how much was taken, what is the fair value for what was lost in the way of health. Mrs. Jones would much rather have her health back and not be here, but that is not an option. So you are here, sitting as a group of appraisers, assessing those loses under the law. (This is important so the jurors don’t think this is a windfall for your client. She is in a deficit and will never be whole again. We are just trying to fill the hole as best we can, under the law.)  

So let’s talk about what was taken from her, what was lost in the way of health. As the normal discomfort that comes with the aging process comes down the tracks, it will roll up on top of this unnatural baseline she now has to put up with, making it much worse. Right now, it’s as good as it’s going to get for her; and she still has all this discomfort that flares up, and it’s much worse if she does anything strenuous. The consequence is she has had to alter her normal activity level to avoid the worst of it. Those alterations may not seem like a big deal, but they really matter. Staying as active as possible is the way to prolonged health and quality of life. Reducing her level of activity prematurely is no small matter. It has a domino effect over time.

Don’t get me wrong, she is glad to have the improvement the doctors were able to achieve for her. It was expensive, but it was worth it. The problem is the doctors have done all they can do and she will never get any better than she is now, she will never be the same. As time goes on, she will feel it more and more.

Keep in mind this is a verdict for all time. There are no update verdicts, 10 years from now, 20 years from now, 30 years from now. (This is important to expand the jurors’ focus beyond the here and now.)

Life is lived one day at a time, one hour at a time. As Mrs. Jones explained, the fallout from her injury flares up on average 3-4 days a week. Once it starts, it usually lasts the rest of the day, for an average of 12 to 16 hours a week. If you were to take the lowest of those figures and simply calculate the amount of time over her life expectancy (of 40 years) and factor in merely $10 an hour, that would come to approximately $180,000. Using an amount as low as $5 an hour comes to $90,000. Those calculations do not factor in, at all, the impact age will have on her condition. So I would suggest to you that the starting point of your discussion is the range of $90,000 to $180,000 and it certainly could be more. Anything less would not fit the evidence. Anything less would not be a fair and reasonable assessment of this kind of life-long, forever injury.