By Jim Wren

Excerpted from Proving Damages to the Jury

§18:20 Time and Structure

Different attorneys and consultants are seemingly all over the board on the question of what percentage of your closing argument should be devoted to the discussion of damages. Less experienced attorneys have a natural tendency to focus almost exclusively on the discussion of liability, so that damages get treated like an ugly stepchild. There is a better way.

Without question, discussion of liability must come first. Never give jurors the perception that you are seeking a sympathy verdict by discussing damages before you’ve nailed down liability. Until convinced of liability, jurors are not committed to finding damages. Emphasize and clarify the standards that were to be followed and why, the conscious choices of the defendant that caused those standards to be violated, and how a verdict for liability matters for the future

However, liability and damages should be allocated roughly equal time. If liability is difficult, it may get a little more time. If liability is an admitted or foregone conclusion, it gets less.

Here are some guidelines for structuring the portion of closing argument that specifically deals with damages:

    • Break your discussion of damages into logical components to help jurors recall your discussion.

This can be done in a couple of ways. Most jurisdictions use some variety of special verdict form, often separating damages into component elements. If so, one approach is to use the structure of the special verdict form, addressing the damages elements in the same order as they appear in the verdict form. This gives jurors a structure to reference and use for recall in the jury room. (However, depending on the order in which the damages elements are listed, this may not be the best approach if it causes you to start with smaller rather than larger numbers, as discussed below.)

Alternatively, or in combination with the order in the verdict form, discuss damages in logical time frames such as immediately following the occurrence, during the recovery phase, and into the future.

    • Start with the big numbers.

The first number discussed makes subsequent numbers look small or large by comparison. [For more on anchoring, see Chapter 3, The Language Keys to Communicating Damages.] If possible, structure the special verdict form to start with the damages component that justifies discussion of the largest number first. If that isn’t possible, look for a different way to discuss a large number first, even if that can only be done by discussing something “irrelevant,” such as the value of a Monet original or the amount paid to Fortune 500 CEOs.

    • Don’t clutter jurors’ minds with damages minutiae.

Round down, drop little numbers, and spend time in proportion to dollars. If your expert has testified to a present value of $983,560.00 in lost earning capacity, round that number down (not up, lest credibility be lost) to a simple, easy to remember number such as $983,000 or $980,000. If the funeral bill is $8,500 on a $4 million lawsuit, forget about the funeral bill, since it only focuses jurors on small numbers. Allocate your argument time in proportion to the size of the damages component. Big numbers deserve big time.

    • Accommodate short attention spans by refocusing attention at short intervals.

There are several aspects to this principle. First, every few minutes (preferably every 3 to 4 minutes), announce a new chapter by “signposting” that you’re moving to a different topic. The different topic can be a different component of damages, or it can be a further reason for assessing an amount to the same damages component. (For example: “I want to turn to …” or “Now, there’s another very important aspect of this …”). Second, although not imperative, it helps to have a single visual image or object connected with a given topic. The visual may be a graph, word, or phrase written on a flip chart, it may be an exhibit, or it may be as simple as sitting in the witness chair to remind jurors of a particular point they heard from there. The objective is to offer visual stimulation that helps lock the point into the minds of jurors. Third, use variety in your vocal pacing and tone to keep the attention of jurors.

§18:21 Use of Visuals

In jurisdictions where a special verdict form is used with specific questions and definitions, it is imperative to present the verdict form (or a simplified, condensed version of it) visually to the jurors. They need to be able to follow your points and associate them with the applicable questions and definitions. In courts where jurors each receive an individual copy of the charge, it is probably even more important to visually project the verdict form language, so that the jurors aren’t each buried separately in their own paper copies. The court’s language can be projected on screen or put up on foam board posters.

It’s helpful to reduce the list of jury questions to a one page visual, so that all of the questions (and answers) can be projected at one time. This helps jurors see the overall context of the damages components. I believe it’s helpful to write in the appropriate or suggested answers as the closing progresses.

In discussing liability during the first half of the closing, the visual depiction of admissions has a powerful effect. These include admissions about the standards to be followed, the violation of those standards, and the effect of those violations causing injury. It is extremely helpful to obtain admissions couched in the same language the court uses in its charge to the jury, so that the admissions may simply be displayed next to the relevant portion of the special verdict form.

As you move into the discussion of damages, display the documentary support for the larger damages numbers. If there is a life care plan, show it. If there is a significant lost earnings calculation, show the basic calculation and walk through it (but don’t get lost in the minutiae of calculating present value numbers). Give the jurors the chance to visually absorb the larger anchor numbers. Consider what graphs you will want to draw yourself to illustrate a point: for example, a pie chart to demonstrate medical costs being a fraction of suffering, or a bell curve to demonstrate the midrange reasonableness of what is being requested in a case.

Ultimately, you want to bring home the personal struggle(s) of your client or client’s family with more emotive visuals, like the family picture or the personal letter that reminds jurors of the human struggle and toll. In short, the progression of the visuals follows the same path as that of the closing as a whole: moving from the purely factual to the passionate, with the special verdict form serving as the roadmap.

Caveat

Technology can and will fail at inopportune times. Closing argument is truly the crucial “close” to pull it all together for your jurors. It’s no time to be thrown off by a technical glitch. Always have a visual back up plan if things go awry. For example, have the most important visuals on foam boards or prepare a flip chart to use with a black marker as a last resort. If you aren’t thrown off by the glitch, the jury won’t be bothered.

§18:22 Rebuttal

Always reserve time for rebuttal, and don’t cut yourself short. Rebuttal has a potential double advantage because it’s the last thing the jurors hear and it goes unanswered.

Plan for rebuttal just like you plan for the first part of closing. You can generally anticipate what the defense will say. Use rebuttal to deliver your most powerful, concise arguments. This isn’t the time to tally up numbers. That should be done in the opening summation. If you fail to discuss damages in the first phase, and the defense likewise does not address damages, you will generally be barred from raising damages for the first time in rebuttal. [See e.g., Shaw v. Terminal Railroad Association of St. Louis, 344 S.W.2d 32, 37 (Mo. 1961).]

Don’t repeat what you’ve already said in the first part of closing; make this part fresh. In addition to having planned responses, listen carefully to the defendant’s closing. You’re listening for the opportunity to take something specifically said by defense counsel in order to use it to illustrate why the damages verdict must be substantial in this case.

Because you have a plan for rebuttal, you’re actually free to listen to the defense argument without your mind racing to figure out what you’re going to say. Simply listen for the defense counsel’s overstatement, false statement, or unfair statement. When the defense lawyer hands you a beautiful opportunity (and it will happen more often than not), don’t hesitate to lay your plan aside and exploit the opportunity to show how the defense is trying to use overstatement, falsity, or unfairness: “[Defense counsel’s] argument tells you everything you need to know about their attitude in this case.”

Here are some common examples to help you know what to listen for:

    • The unfair defense attack on the plaintiff.

If you have proven the liability in the case and the genuine extent of damages, jurors will likely regard a personal attack on the plaintiff’s motives or truthfulness to be “too much.” You can then use that attack in your rebuttal to say that it tells the jurors everything they need to know about the defendant’s attitude toward anyone he may hurt.

    • The arrogance of refusing to accept any personal responsibility.

When defense counsel continues to deny any responsibility at all, in the face of at least some degree of obvious fault, that becomes a primary focus of rebuttal. Because the defendant refuses to accept any personal responsibility at all even now, only the jury can make a difference.

    • The misstatement of evidence.

When you can catch and demonstrate the defense twisting the truth, you have been given a gift. Your rebuttal gets to focus on credibility as the foundation for accountability. When the defense believes it can deny the truth, not only to the plaintiff but to the jury as well, there should be no doubt about the need for a fully just verdict (because of the need for accountability).

Sometimes, it’s not what was said but what wasn’t said that provides a rich source for rebuttal:

    • The credibility gap of too many unsupported defenses.

When the defendants have pleaded multiple defenses and raised them in voir dire or opening statement, only to abandon them without further discussion in closing argument after the proof has come in, the defense suffers from a credibility gap. They are determined to continue denying responsibility, even if that means moving from story to story with no explanation for the change. It’s up to the jury to say enough is enough and to bring full justice.

    • The failure to respond to the damages argument.

Defense lawyers often exhibit the same tendency as plaintiff lawyers-to focus on questions of liability and ignore damages. Sometimes they fear that they will concede the possibility of liability by responding to damages. If the defense attorney falls into this trap, point out in your rebuttal that at least “there is no question about the amount of damages. If there were, you know you would have heard that from [defense lawyer]. No one questions the amount of what [plaintiff] has lost.”

Don’t worry about responding to everything said by the defense. This is not a time to be defensive; stay on offense. Use your best points to crystallize and destroy the defense arguments wherever those arguments are the weakest. Let your passion show. Focus on the human price paid by the plaintiffs along the way to placing this case and their lives in the hands of the jury. Emphasize the need for the jury to stand for what is right and to do it without compromise. Anything less than full justice is injustice.


Jim Wren is a trial lawyer – with more than 30 years of trial experience – and a Baylor law professor. He is board certified nationally in Civil Trial Advocacy by the National Board of Trial Advocacy, and by the State of Texas in both Personal Injury Trial Law and Civil Trial Law. He was named as a Texas Super Lawyer each year from the origination of the designation in 2003 through 2007, when he was recruited to the BaylorLaw Schoolfaculty as a professor teaching trial procedure and advocacy. Although he now teaches on a full-time basis, he continues to represent a limited number of clients in courts across the nation.

Jim has served as a board member of the National Board of Trial Advocacy and of the Texas Trial Lawyers Association, and as national president of the National Board of Legal Specialty Certification (2009-2011). He has also served as chapter president of the American Board of Trial Advocates (ABOTA).

Jim graduated with a J.D. cum laude from Baylor Law School in 1980, and subsequently added an M.A. in International Relations from the Universityof Kent at Canterbury. He is also a graduate of Trial LawyersCollege in Dubois, Wyoming.