Plaintiffs' bar: changes to right to argue damages problematic.

Byline: Pat Murphy

The Legislature added a valuable weapon to the arsenal of plaintiffs' attorneys by enacting a law in 2014 recognizing a party's right to argue damages in Superior Court.

Since then, trial lawyers more often than not have made the strategic choice during closing arguments to "fix" in the mind of jurors a number that will fairly compensate their clients for the injury that's alleged.

While recognizing that proposing a specific award of damages is not the best strategy in every case, personal injury attorney Mark A. Tanner said he has yet to try a case since the law's passage in which he determined that doing so was not in his client's best interest.

"If you can put a number out there, that is what people remember when making decisions," the Northampton lawyer said.

But one problem the plaintiffs' bar has with the law is the lack of consistency with which Superior Court judges have been applying it, said Kathy Jo Cook, president of the Massachusetts Academy of Trial Attorneys.

"Different judges have been handling it in different ways," the Boston attorney said.

In an effort to bring uniformity, the Supreme Judicial Court's Standing Advisory Committee on the Rules of Civil Procedure recently proposed amending Rule 51 to address the statutory right to argue damages.

Plaintiffs' attorneys welcome the idea that the proposed rule would extend the right to argue damages to all of the state's trial courts. On the other hand, they are concerned it gives judges too much discretion in forcing plaintiffs to provide advance notice of an intent to argue a specific damage award and, in turn, giving defense counsel the opportunity to argue in rebuttal against the plaintiff's number.

"The reality is the Legislature gave us the right to argue a number," Cook said. "We should be able to stand up and argue a number, and that should be the end to that."

Right to argue

In 2014, the Legislature amended G.L.c. 231, 13B to add: "In civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial."

But is it really an advantage for counsel to be able to suggest a specific damage number to jurors?

[box type="shadow" align="alignright" width="325px"]The proposed rule states: "If a party who intends to suggest a specific monetary amount does not provide notice to all other parties reasonably in advance of closing arguments of the amount to be argued, the court shall structure the closing...