Making an Argument for General Damages

MA Arguments for General DamagesAs a California personal injury attorney, I have used various techniques to try to persuade jurors to award a large amount of money for pain and suffering damages for my clients, but I think it all goes back to one fundamental concept as follows: We must teach the jurors how to follow the law. I do this through their “roadmap”, which are the jury instructions. On the issue of general damages, I use the following, standard California Judicial Council Approved Civil Jury Instructions (CACIs) as follows:

CACI 3900: Introduction to Tort Damages, states, in pertinent part, as follows: “If you decide that plaintiff has proved his/her claim against defendant, you also must decide how much money will reasonably compensate plaintiff.” The instruction goes on to state the following: “The amount of damages must include an award for each item of harm that was caused by defendant’s wrongful conduct, even if the particular harm could not have been anticipated.” The instructions then go on to explain the difference between “economic” damages and “non-economic” damages and provides specific explanations as to the different types of each. For example, it explains that “economic” damages include, past, present and future costs of medical treatment, past lost earnings, future loss of earning capacity, etc. When it comes to “non-economic” damages, CACI 3905A, breaks this down to include both past and future loss of “physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, emotional distress.”

How Do You Teach the Jury to Use These Instructions on General Damages

I would start with CACI, 3900 and explain that “when” they have checked “yes” on the verdict form box that states: “Was the defendant negligent and did this negligence cause plaintiff harm” they then MUST award EACH damage shown. I would explain to them why the law defines “economic” and “non-economic” damages separately and tell them that even if they have personal biases or opinions about “pain and suffering” or “run away jury awards”, they have taken an oath to follow the law and award “each” item of damage, including the non-economic damages. I would explain that there are a lot of laws on the books that everyone does not agree with but, those persons must, nonetheless follow those laws unless and until they are changed. From there, I would take CACI 3905A and blow it up and break down into “each” element. For example, I would say that “physical pain” is different from “mental suffering” which is different from “disfigurement”, etc. From here, I would put in the evidence (usually from the plaintiff’s trial testimony along with medical expert testimony) as to “each” of these damages. This requires getting to know your client and becoming familiar with what it was like to experience the accident, the immediate aftermath of trauma care and other treatment, the additional pain of surgeries and post-surgical physical therapy, the disruption this caused to their everyday life at home and at work, etc. This requires careful review of the fact, meticulous preparation of the client for their deposition and trial testimony and coordination and preparation of the medical experts who testify. I would then go back to the verdict form and show them that they have to add up “each” and every number and category of non-economic damage to get to a total award.

How attorneys in Other Jurisdictions Can Use These Techniques

Let’s face it, the law of economic and non-economic tort damages is pretty uniform in almost every state. The California standard instructions cited above are probably similar to most. The main goal is to explain to the jury that these instructions are the “rules” they “must” follow and then show them how to use these rules so that they come up with a number which is, hopefully, as high as possible for the injured victim. I believe most attorneys use the instructions on “economic damages” this way by separating, for example, lost wages, from past medical expenses, from future loss of earnings, etc. My belief is that the same concept can be applied to “general damages”, which allows the jury to take a more detailed look at the otherwise amorphous concept of “pain and suffering.”