Closing Arguments on Damages

There is a continuing debate among even seasoned trial attorneys on how to best 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. For more information visit http://www.marylandinjuryattorney.net

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Proof Of Loss Earning Capacity In a Self Employed Situation

Loss earning capacity refers to those situations where the plaintiff has suffered a permanent injury which prevents him from earning the same income he had prior to the injury. It is not an issue of loss future wages. It is an issue of loss earning capacity. And oddly, in a Maryland personal injury case, you can get the damages in a self employed situation even when there is no history of income earnings. See ANDERSON, et al.v. LITZENBERG 694 A.2d 150 (1997). I suggest the necessary proof is as follows: (1) proof of permanent injury as established by a doctor's testimony who is familiar with the physical demands of the Plaintiff's prior employment the current physical limitations; (2) testimony from a vocational rehab expert as to the value of the services the plaintiff was performing prior to the injury as compared to the value of the services the plaintiff is capable of performing with his new physical limitations; (3) an economist to testify to the present value of the loss future earning capacity and the Plaintiff's work life expectancy.

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Discovery Admission of Fact

I have often had limited success using this form of discovery in personal injury cases. Defendants normally simply deny all requested admissions. There is no penalty in the rules for a denial that ends up being true, other then the potential that I can recover cost incurred in proving a fact denied. However, I came across an idea from a very good blog that sent me to another blog that proposed an interrogatory question to be filed post the admission denials. The author of the blog proposed an interrogatory as follows:
"To the extent that any of your responses to any of Plaintiff's requests for admissions is other than an unqualified admission, list all facts on which you based any part of your response that is not an unqualified admission, identify all documents memorializing each such fact, and identify all persons with knowledge of each such fact."

This is interesting enough to try. After all I like the idea of an admission of fact. But what value when the dog has no bite.

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Discovery Of Pre-Existing Conditions

I normally propound an interrogatory question to the defendant requesting information they may have regarding my client's pre-exisitng conditions, if any, or if they contend a pre-exisiting condition was aggravated by the accident. Generally, the defendant objects, stating this is work product. I came across a Discovery opinion that states the defendant is required to answer. However, their response is limited to information provided by the plaintiff. I agree this is maybe of limited value to the plaintiff absent the defendant failing to identify the condition in their answers to interrogatories, post plaintiff's disclosure, and later being denied the opportunity to make the argument at trial. Daily Record Sperti v Muhr August 10, 1966.

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Pre-Existing Conditions and Damages

Yep here we go again. Plaintiff with a pre-existing condition gets into rear end accident. Plaintiff says you are responsible for my subsequent surgery. Defendant says we did'n't do nutin, ya'll had dat conditin prior too da axel dent. Wrong high insurance premium breath. Take me as I am and love me with all my susceptible body parts. You think I aggravate you well guess what you aggravate me and my pre-existing condin tin too. See MPJI 10.3 SUSCEPTIBILITY TO INJURY The effect that an injury might have upon a particular person depends upon the susceptibility to injury of the plaintiff. In other words, the fact that the injury would have been less serious if inflicted upon another person should not affect the amount of damages to which the plaintiff may be entitled. See MPJI 10:4 AGGRAVATION OF PREVIOUS CONDITION A person who had a particular condition before the accident may be awarded damages for the aggravation or worsening of that condition. And just to mention all foreseeable consequences. See Empire Reality 305 A 2d. 144 (1973). I ma comin ta geet ya boz and hidden hind dem pre-sistin arguments ain't stoppin me no wayza.

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You Gotta Love Property Damage Photographs

I start every liability theory with a complete evaluation of those property damage photographs. You know how they say a picture is worth a thousand words. Well they were right. The damages tell you everything. Direction, speed, point of impact, not to mention that they don't lie. I have a case now where the plaintiff says the defendant was backing up from a side street while turning into traffic. The defendant says the plaintiff rear ended me and I was not backing out I was simply making a turn. Even in this very close call case, I can tell you the PD photographs will win this case for my client. You watch and see if I'm right.

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Finding Hay in a Needle Stack

I spent several hours late Monday evening outlining medical records for a very serious personal injury case I am preparing to file suit on. I was most curious to track the causation issues from initial treatment at the hospital to final discharge. My client ultimately had surgery to the c6-c7 disc as a result of herniation caused by the accident. The initial presentment at the hospital immediately post accident had my client complaining of finger numbness. Not every day I find such a clean connection. I was pleased. Next, as a matter of habit, I outlined all post hospital release treatment records looking for symptom inconsistency between doctor records and physical therapy records. I can not tell you the number of times I have a doctor's report saying he is doing better and a PT report saying the patient is unimproved and both occur on the same day and sometimes only hours apart. Finally, I look for symptom exacerbation and on this point I often notice the medical records state things like much improved released to full work only to find two weeks later problems worse with activities. Also, for serious injuries such as this case, I always find worsened conditions between October and March. The cold weather is a killer. I review the records in this manner because I know already the records are in evidence and some defense attorney is going to stand in front of the jury and say see he's lying look at the records better one day worse the next. I need to explain that apparent inconsistency. Now I can argue see his symptoms are affected by activities and weather. Argument preplanned is not paranoid. Unless it wakes you 2:30 am every night for a week.

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Taking the Case

I met with a potential client a few days ago regarding a personal injury accident that had happened nearly 3 years prior. In fact when I met him he was 9 days from expiration of the statute of limitations. After meeting the gentlemen, I had to declined to accept the case. Normally, I would not meet this close to an expiration of the limitations. However, my office always accommodates when a former client referrs a friend or family member as a matter of policy. Prior to finishing the meeting I had the potential client execute a notice of limitations to be sure he acknowledged the time frames for filing suit and the consequences of not filing suit. I declined the case not so much due to the limitations period, which was a significant issue, but also due to the intensity of his demeanor in proclaiming his damages. It was a very odd contradiction that a person would wait 3 years post accident with no more then soft tissue injury and now be outraged at the damage he suffered. Not that he was not truthful. In any event, I came upon a list of the difficult cases many personal injury attorney look at twice before accepting. Red/Light Green/Light cases, lane change cases, slip and fall cases, delayed treatment cases, client ticketed cases, low property damage cases, uninsured vehicle cases, and pending personal injury cases from prior accidents.

Settlement Process

Once a client has completed treatment and reached what I call MMI (maximum medical improvement) I draft a demand letter. The demand will consist of all medical records indexed along with each bill for the cost of treatments rendered as corresponding to the date of treatment. Additionally, other cost incurred are included such as rental cost, prescriptions, towing bills, and lost wages. These are all forward to the claims adjuster in a very neat and organized package with a cover letter outlining my client's position on liability and a complete and accurate account of the damages. We use this opportunity to advocate our client's position right up front with a complete and compelling articulation of our position. It is our intention to impress upon the claims adjuster that we are thorough. We have investigated and we are prepared. Many attorneys also like to forward the complaint and discovery along with the demand package. Personally, I make this decision on a case by case basis. I prefer to make contact with the adjuster immediately after I receive a case. This way I get an idea of the type adjuster I am dealing with. I find some adjusters are professional and objective and simply evaluate the case accurately. Others are dispassionate, or indifferent, and still others are crusaders for the position that all injured persons are simply liars. I always believe the crusaders stay crusaders until they are injured in an accident. The difference in sending the complaint and discovery with the demand is minimal in effect but similar to greeting some one with a hand shake or with your fist up. When I have developed a relationship with the adjuster I see no reason to greet them with my fist at the ready. Besides the indifferent adjuster never even read the complaint/discovery, the crusaders welcome the complaint/discovery, and the professionals laugh at the complaint/discovery. In any event, in the most serious of cases, I make a practice of letting the adjuster know well in advance that we have a serious injury case. I have learned that giving this advanced notice helps the adjuster to set reserves in the case. This impact can not be minimized down the road. At the commencement of the case the adjuster sets a reserve for their evaluation of the case value. They will be evaluated by their boss later in the year based on how many cases they settled with in the limits of these initial reserves. If the adjuster has a low reserve in your case based on a misimpression of the value they will try to get your case settled with in the confines of the low reserve. Not a good situation when you are trying to settle the case at maximum value for your client. I make a point of checking with the adjuster if they prefer that I forward preliminary medical reports and updates as the treatment progresses or send the completed demand package at the end of the case. Some adjusters have a preference. I have found that treating each client's case as an individual case in stead pursuing the cookie cutter approach maximizes the potential for a successful recovery.

How To get Your Medical Records Into Evidence

GETTING YOUR DOCUMENTS INTO EVIDENCE http://www.marylandinjuryattorney.net/Evid%20Documents.htm

It is important in your proof to get your documents into evidence. This can be accomplished in multiple ways and the procedures for doing so vary depending whether you are in the district court or the circuit court.
District Court Procedure: Courts and Judicial Proceedings Article 10-104 provides in pertinent part as follows: 60 days before trial you must serve pursuant to MD Rule 1-321a notice of intent to offer medical records and billing statements and provide a list to identify each record and the actual report/bill. Also you must then file with the court a Notice of Service which list and identifies each record. Upon completion of this task it is no longer necessary for you to bring in an expert to testify on causation or that the medical cost were fair reasonable and necessary. Also, it is no longer necessary to subpoena records custodians to court to have the records entered into evidence as business records. it is important to note that you can use this same procedure in the event your case is moved to the circuit court on the defendant's request for jury trial. Provided you do not seek damages in excess of the district court limit of $25,000.00.
Circuit Court Procedure: In the circuit court I use each of the following methods:
1. Stipulation by Letter. I simply forward a letter to defendant's counsel enclosing the medical records and bills and ask that they agree that the records and bills are authentic and admissible. the stipulation makes clear that the defendant's counsel is not agreeing the injury is casually connected or that the cost are fair, reasonable, and necessary. Only that the records are what they purport to be.
2. Request for Admission of Fact: I do not generally find that procedure functional. I mention it because it is available. However, generally in my experience defendant's counsel simply deny the allegations. While I recognize a failure to deny is an admission, I have not yet seen a situation where defendant's counsel fell asleep at the wheel and failed to deny. The rule has no teeth as an unreasonable denial is not subject to sanction. However you can try to recover cost later.
3. Stipulation by Pre-trial Statement. You will eventually appear before the court for a settlement conference. This is a good time to get a stipulation to your documents. Defendant's counsel are in my experience very professional attorneys. They have no reason not to agree the records are authentic. Additionally, they have no interest in appearing unreasonable to the court. You simply list your documents in the pre-trial statement and request the court to inquire if defendant's counsel has any objection to the admissibility.
4. Expert Testimony. When you review further into the web sight you will find a section on expert testimony. You can also use the expert as a way to get your records into evidence. I will mention the records will come into evidence however using this method the records do not come in as proof of injury, they come in only as the basis for the expert's opinion. It is necessary to have the expert testify that he reviewed the records, he relied upon their content in reaching his opinion and that it is customary in his profession to rely upon such information.
5. MD Rules 5-803(6) and 5-902(11) . This is my favorite means of having records entered into evidence. It requires advanced planning as the records properly must be support by the affidavit of the records custodian. To proceed in this manner order your records; secure the custodian certificates; forward the medical records and bills to defendant's counsel; and file a notice of service to the court. As an extra measure of safety I also include with filing a list of the records by date and service and cost incurred.
6. Subpoena. Simply subpoena the records custodians to appear in court with the records.
7. Defendant's Counsel Records Deposition. Once defendant's counsel issues the records deposition I forward a letter requesting a copy of the records produced. You can follow receipt of the documents with the Request for Admission of Fact, but again in practical terms simply a call the defendant's counsel should be sufficient to get a stipulation. Again in my experience the defendant bar has always been very professional in these situation.