Closing Argument

• Author: Jim Wren
• Pages: 509-544

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18. Closing

Argument

Chapter 18

Closing Argument

I. Fundamental Principles

§18:01 Damages Are Driven by the Desire to Make a Statement

§18:02 Prepare Your Jurors to Argue Damages

§18:03 Help Jurors Make a Significant Difference

§18:04 Stand for the Protection of Values

§18:05 Value Positives Rather Than Negatives

§18:06 Provide Guidance for Intangible Damages

§18:07 Engage Jurors With the Right Kind of Passion

§18:08 Adjust for Your Own Age

II. Organization

§18:20 Time and Structure

§18:21 Use of Visuals

§18:22 Rebuttal

III. Sample Arguments for Specific Damages

§18:30 Death Case

§18:31 Loss of Relationship

§18:32 Loss of a Child

§18:33 Injury to a Child

§18:34 Loss of a Spouse

§18:35 Loss of a Parent

§18:36 Death of the Elderly or Terminally Ill

§18:37 Pain

§18:38 Brain Injury

§18:39 Connective Tissue Injury

§18:40 Disfigurement

§18:41 Future Damages

§18:42 Lost Earnings and Earning Capacity

§18:43 Life Care Plan

§18:44 The Close Calls on Damages

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18. Closing

Argument

Proving Damages to the Jury

IV. Sample Counters to Common Defense Themes

§18:50 Prohibition on Sympathy

§18:51 Apologies and Regrets

§18:52 Money Won’t Make a Difference

§18:53 Just Economic Damages Only

§18:54 Preexisting Condition

§18:55 Lottery and Greed vs. Reasonableness and Fairness

§18:56 The Elephant in the Room: Collateral Sources

V. Admissibility Issues

§18:60 Per Diem or Unit of Time Argument

§18:61 Golden Rule Argument

§18:62 References to Amount of Damages Claimed or Expected

§18:63 References to Amounts of Verdicts in Other Cases

§18:64 References to Income Tax Consequences

§18:65 Direct Appeal to Fear and Self-Interest

§18:66 Use of Inflammatory or Abusive Language

Closing Argument §18:02

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18. Closing

Argument

I. Fundamental Principles

§18:01 Damages Are Driven by the Desire to Make a

Statement

Although the extent of injury is important in determining the amount of intangible

damages, it’s not the most important factor.

Intangible damages are subjective. Even the decision to award full tangible damages has a

subjective basis, and that subjectivity is fed by the desire of jurors to say that the values violated

by the defendant matter. The more important the values are that are at stake (not just to the

plaintiff, but to others in the community), and the more intentional and harmful (i.e., dangerous)

the violation, the more motivated jurors will be to take a strong stand against the violation.

This means that anger, specifically anger in reaction to the bad intentions of the

defendant, is often a big part of a large intangible damages verdict.

Gary Richardson, an excellent attorney from Tulsa, described this when another lawyer

asked him about a multi-million dollar verdict he had just recovered for a farmer whose

arm was torn off by a hay baler. The farmer was the most recent of several people to lose

his arm to this particular model of hay baler, and the machine remained unmodified. The

question was: “How much did you have in medicals and lost earnings?” The answer: “If

you’re asking that question, you don’t understand my case.”

The bad intention may not be the intent to harm. It may simply be the intent to cut

corners, to consciously decide that the risk (to someone else) is worth the benefit (to self).

But, it is crucial to understand that your damages story doesn’t start with the injury. The

injury is only a midpoint between the series of conscious decisions that have paved the road

to injury, and the life that follows thereafter. Your damages story starts with the conscious

decisions of the past, because the anger of jurors drives damages, and conscious decisions

that show bad intentions feed the anger.

In addition to being motivated by anger, jurors will advocate for what they understand

and care about. They have to see how their damages verdict is right and how it will make a

difference that matters. Ultimately (although not necessarily in these words), your closing

argument must focus the jury on answering the question: “Why is fighting for the full extent

of these damages one of the most important things you have ever done?”

You must help jurors see that they have the opportunity with their damages verdict to

make a statement that matters.

§18:02 Prepare Your Jurors to Argue Damages

Jurors start making up their minds at the earliest stages of the case. By the time of closing

argument, they have become increasingly entrenched over days of testimony. However,

once they step into the jury room, the situation is different. Jurors have to start considering

the possibility of changing their votes when it becomes necessary to start agreeing. At that

point, you need jurors who are well prepared and motivated to become the new advocates

for your clients. You want to use closing argument to equip and motivate the jurors who are

already inclined your way.

Don’t use closing argument to merely restate and rehash the obvious. If all you give your

jurors are the same lines they’ve already heard over and over, you’re only equipping them