Gregory Barnhart argues for up to $20 million in punitive damages in Wilcox v. R.J. Reynolds. The jury ultimately awarded $8.5 million in punitive damages alone.
Discussing damages is one of the most delicate elements of your closing argument. Even a case supported by solid evidence and compelling testimony can fall apart if you alienate your jurors with a damage request they consider excessive. On the other hand, if you fail to give them a roadmap to calculate damages, you risk leaving money on the courtroom table.
The general rule is to ask your jury, specifically and directly, for the damages your client is seeking, showing point-by-point how you reached the figure you're giving them. This works well for economic damages, where you can use directly relevant data to support your argument. But what about less tangible claims, such as pain and suffering, or cases in which hard economic data can't be pinned down? In those cases, there are three strong approaches when it's time to face the jury.
1. Give a single, firm damage amount.
Many attorneys hold by the rule of asking for a single, firm amount regardless of the damages they're seeking. After all, you can find data to arguably support even the most difficult-to-measure claims. In this approach, it's especially important to use that data to lead your jury step-by-step to your final number. Gregory Barnhart employed this approach when arguing for punitive damages in Wilcox v. R.J. Reynolds. He also used the increasingly popular technique of placing a "cap" on his request. After calculating a $20 million punitive award by relying on Reynolds's financial statements, he told the jury "You may think (that figure) is right. You may think it's too little. You may think it's too much. But, please don't go over that amount. Please don't go over that amount." By asking the jury not to award more than what you ask for, you're reinforcing your belief that your requested damages aren't excessive. Barnhart's argument helped lead to an $8.5 million punitive award on top of $7 million in compensatories for his client.
2. Present a Detailed Range of Damages
Leading your jurors through a detailed range of damages provides them a clear path to calculate an award while giving them the flexibility to modify damages based on their view of the case. By detailing a range of damages, you can rely on hard numbers while insulating yourself from appearing to ask for too much. Jeffrey Sloman, in Baum v. R.J. Reynolds, employed this approach when requesting a slate of damages that are traditionally difficult to estimate, such as pain and suffering. Although the verdict ultimately went to the defense, Sloman's approach provided the jury a blueprint for how to reach a damage award if they had found for his client on the merits.
3. Present a Damage Range as "Inspiration"
When a case presents unusual circumstances the best approach may be to acknowledge the difficulty in calculating a damage award, and simply give the jury factors to consider. This tactic minimizes the risk of alienating your jury while still providing the growndwork to calculate an award. Michael Goldberg took this approach in Fellers v. Just People Inc., a wrongful death suit against a facility for the intellectually disabled. Goldberg discussed the typical process of estimating the value of a lost life, including factors such as life expectancy and earning capacity, before providing a damage range in a "typical case." He then acknowledged that some of those factors may not apply to Hunter Fellers, the intellectually disabled man whose death launched the suit. Giving the jury a damage range to use as "inspiration" for its deliberations ultimately led to a $2.022 million award.
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