Paul Luvera, The Daily Record Newswire
The objective of a personal injury lawsuit for damages is, primarily, the damages. Yet, in my experience, that’s often the most difficult part of summation for attorneys.
“How do you ask for the money?” I’m often asked. We know there’s not one answer to the question and that it depends on the advocate, as well as the facts of the case.
The combination of the counsel’s credibility, the case issues and jury impression controls the outcome more than summation words. However, the jury is looking for guidance and direction from a strong advocate, and you must always give them that guidance.
Research has concluded you should suggest a figure for the verdict in every case. The amount of that figure is subject to careful evaluation. In the damages introduction of the case, I like to cover some basics by discussing damages in a general advocacy sense. I usually go over these items:
1) A reminder of voir dire discussion points — Try the case on the basis of no sympathy for either party. Render a verdict for full justice.
2) Burden of proof — Give instructions and an explanation about the degree of proof required. I like them to know we will make a rebuttal argument so it does not come as a surprise when we do so.
3) Proximate cause explained, with examples
4) The most important issue — What sum fairly, reasonably and justly is required for a full and proper verdict?
5) The two kinds of damages —Explain the difference between economic and non-economic. Economic damages relate to the bills and reimbursement to hospitals and doctors and others providing care. Non-economic damages are the most important part of the case, because they represent justice. The scale has to perfectly balance with money on one side and harm suffered on the other side. It is the equivalent of an eye for an eye in dollars. That’s what this case is all about.
6) The two time periods — For non-economic damages: past and future, as they apply to disability, mental and physical pain, and loss of enjoyment of life.
7) Evaluation in dollars — List the economic damages with explanation, the past elements of non-economic damages with dollar figures, and the future elements of non-economic damages with dollar figures.
8) A comparison dollar evaluations to real-life examples — Explain the reasons why figures are conservative and reasonable.
The rest of the argument deals with general concepts about justice, the reason they are on the jury, and the importance of the case, both to them and the community. Here is a simple outline of the points you want to hit and how you might go about conveying them in the brief time you have to speak to the jury:
• Introduction
Justice is the reason we are here. We do not have the power to cure, nor the right to inflict like harm on the defendant. Our system does not involve an eye for an eye or a tooth for a tooth. It calls for money to equal the harm done as the only justice this jury can require.
We only have one opportunity for justice here. The injured person cannot come back each year and report his situation to a jury for an annual evaluation. One verdict now and forever. To be fair it must be complete. Not half justice, not three-quarters justice; full justice.
• Import
There is a great and important principle involved here. What is the value we place on the right to pursue happiness without having injury inflicted upon us by the wrongdoing of others? This is an important case because you will set the value of this principle for yourself, the community and the injured party.
• Rare chance to help another directly
This is a rare chance for us to directly help another person in a specific way. We go to the polls to vote, but we do so with hundreds and thousands of other people. Here, however, your vote directly impacts another person’s life in a very direct way. Someone who is entitled to justice. We will never again have this rare opportunity to touch another human being’s life and impact his future. This is a rare opportunity to exercise enormous power to determine another person’s future.
• The task requires great courage
Like all matters of importance, this will require an enormous amount of courage to do the right thing. The easier course is to duck the responsibility and work of evaluating the harm done in dollars. I am confident you will have the courage to render a verdict that will allow you in the months and years ahead, when perhaps reflecting back, to say to yourself: “I am proud of doing the right thing in that case.”I know you will have the courage to render a verdict that will allow you to tell your friends and family you participated in establishing a principle about the value of human life.
• A case of stolen dreams
This is a case of stolen dreams and the robbery of a person of what might have been. All of this could have and should have been avoided. What happened here was totally unnecessary.John Greenleaf Whittier wrote in his poem “Maud Muller,” “God pity them both and pity us all, who vainly the dreams of youth recall: for all the sad words of tongue or pen the saddest of these are ‘it might have been.’”
• Loss of freedom
What has been taken away? The right of freedom. The victim was a free, independent American who now has lost that independence. He has health limitations. He has mobility limitations. He has a loss in his family and social life. He no longer has freedom of choice in all the areas of life that he had before this tragedy.
• Loss of dignity
We all have a self-image, and injury changes that picture of who we are. We all have roles in life, and getting hurt forever alters that, which in turn impacts our pride.
• Loss of control
We all have goals and dreams for the future. Injury steals them from us. We are no longer the master of our own ships; instead, we are left in fear of the future.
• Rendering a verdict for the right reason
No matter how you decide this case, it is important that you cast your vote for the right reason. I pray that you will find within yourself the courage to render a verdict that has been sanctified by your conscience, ratified by your reason, and born of the sincere desire to see that justice has been done. I want you to be able to be proud of your verdict for having done the right thing.
Joe, his family and I have placed our trust in you, and we will be here waiting to hear your decision. We are in your hands. Thank you for your careful attention throughout this trial. Whatever your decision, we are grateful to you for listening to us.
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Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.
