B. Permissible Scope of Closing Argument

• Library: South Carolina Damages (SCBar) (2009 Ed.)

B. Permissible Scope of Closing Argument

1. What is Allowed

a. Evidence and All Reasonable Inferences

Generally, closing arguments must conform to the evidence in the record and all reasonable inferences therefrom.¹¹ Fortunately, our courts have been reluctant to stifle the imagination and inspiration of lawyers during their final argument by setting too many boundaries. it is only in cases of obvious prejudice where courts have found final arguments to be improper. Attorneys are allowed, within reason, the freedom to draw inferences and deductions from the evidence, to state their own versions of the testimony, and to comment on the weight various portions of the testimony should be given.¹²

b. Mentioning Items of Common Knowledge to Make a Point

it is completely permissible to refer to items within the common knowledge of the jury to make a point. For example, in cases of permanent injury and disability where plaintiff will need a large sum of money to compensate for his future needs, an economist may use projections of what things will cost in the future from a life care plan. Often, defendants will project the cost of certain items from the life care plan over the plaintiff's lifetime to indicate the economist has placed a high price on each of those items, such as a wheelchair costing $5000 now, may, with inflation, be projected to cost $20,000 years from now. Plaintiff may combat that argument by using the common experiences of the jury about how things have changed in value from the time they were children until now. Remind them that a car could be bought for $2000 to $3000, but now costs $10,000 to $75,000 and gasoline had risen to over $4 a gallon in some places over the years. Give the jury something they can all relate to that is common knowledge and they will accept the figures more easily.

c. Arguing Damages

Plaintiff is entitled to recover, among other things, the reasonable value of the medical services provided to him as a result of the tortfeasor's wrongdoing, and that amount should be discussed in closing argument.¹³ Usually medical expenses and lost wages are easy to discuss by writing those amounts on a board with a brief explanation and move on. Mental anguish and pain and suffering are much more difficult to argue. The term "pain and suffering" has taken on a negative connotation so you need to paint a word picture for the jury to understand what this can mean. There is a famous story about a lawyer who made one of the shortest final arguments on record. He was representing a man who had lost both arms in an accident. He told the jury that he had gone to eat lunch with his client just before the argument and said, "Ladies and Gentlemen, he has to eat like a dog, and he could not even go to the bathroom by himself." He then sat down and the jury awarded him a fair compensation. Ask for too much money from a jury and they may give nothing. if the attorney overreaches on the damages, the jury may feel that he has overreached on the other evidence also and may not award anything.

For negligence actions, the following areas should be mentioned during closing argument where applicable: medical expenses; lost wages; loss of earning capacity; disability; physical pain and suffering; loss of enjoyment of life; alteration of lifestyle; mental anguish; psychological trauma; embarrassment and humiliation; and any future damages resulting from permanent injury. in wrongful death and survival actions, the following should be commented on: pecuniary loss or economic loss; mental shock and suffering; wounded feelings; grief and sorrow; loss of companionship; deprivation of the use and comfort of the deceased's society; loss of decedent's experience, knowledge, and judgment; and loss of decedent's ability to earn money for the support, maintenance, care and protection of the beneficiaries.¹⁴

d. Per Diem Arguments

A helpful method used in closing arguments is to suggest ways that the jury may compute damages using a per diem method. For instance, you can argue, "Ladies and Gentlemen of the Jury, you have heard testimony that my client, Jim, has a permanent condition that will cause him to be in extreme pain for the rest of his life. How much is that worth? One way is to award an amount of money per day for the pain he goes through. For instance, if you were to use $100 a day, then multiply that by the number of days left in his life. The judge will charge you that Jim has 25 more years of life expectancy. Multiplying his 25 years of life expectancy by 365 days a year would yield 9125 days. You could then multiply that by $100 if you felt that was a reasonable amount to be paid for the daily pain he endures, which would come up to $912,500. Of course, you have to use whatever figures you feel are reasonable under the circumstances to compensate him for the daily problems he has as a result of this incident. It may be that $50 a day may be sufficient, or perhaps you feel that $200 a day would be sufficient. Whatever figure you feel is a fair amount to compensate him for what he has been through and what he will go through in the future. You may use this method of computation to help you arrive at some fair figure. I used $100 a day because that is what he was being paid per day for eight hours of work. If the value of his work for eight hours a day is $100, then perhaps the remaining 16 hours a day when he is in pain might be worth the same amount. But of course you have to use whatever amount you feel is reasonable and fair under the circumstances." Counsel should be cautious, however, not to give the jury his personal opinion of the per diem amount since only the jury is allowed to make that determination.¹⁵

it is also useful to prepare posters or use a board to list the elements of damages that are allowed in the case to use as your guide in discussing those damages.¹⁶ As the court held in Edwards v. Lawton¹⁷ while approving a per diem argument: "It has been settled in this State that counsel may use a blackboard during jury argument to illustrate points that are properly arguable or to bring to the jury's attention facts or figures properly revealed by the evidence."¹⁸

e. Anticipate Questions That May Be Raised in Jury Room and Give Answers

A good closing argument will anticipate questions jurors are likely to raise in deliberation and give them answers. For example, if the case involves a minor who may receive a large sum of money, a juror may ask "What is going to happen to this money if we give it to the child?" Anticipate that question and in...