Section 22 Per Diem Argument

• Library: Damages 2012

In 1959, the Supreme Court of Missouri noted: “Only within the past few years have resourceful and ingenious counsel developed the ‘trial technique’ of appealing to the jury to follow a mathematical formula in admeasuring damages for pain and suffering.” Faught v. Washam, 329 S.W.2d 588, 602 (Mo. 1959). That remark, which disallowed a pure per diem argument, was in response to the following argument of plaintiff’s counsel:

In considering what is an adequate sum for this young man, suppose I was to meet one of you ladies on the street and I say to you, “I want to offer you a job and I want to tell you a little bit about this job before you say you are going to accept it; one peculiar thing, if you take it you have to keep it for the rest of your life, you work seven days a week, no vacations, work daytime and night. The other thing is, you only get paid $3.00 a day. Here is your job—your job is to suffer Mr. Faught’s disability.”

Id. at 601–02. Although most jurisdictions permit this argument, Faught is still the law of Missouri today on this point. But some collateral...