CLOSING ARGUMENTS - HOW TO ASK FOR A LOT OF MONEY AT TRIAL

​Closing argument is the closing of a sale.  At least in format, and you are asking a group of people to buy your presentation of the case, and grant your “Ask” even though they are personally not going to benefit in any way aside from the spiritual notion that they have acted with a clean conscience in arriving at their determination.  Otherwise, you are selling.  Be okay with it, and do it from an honest place within you, or do not do it at all. 
            When you go up for your closing argument, remember, it is an argument and not a statement.  You must have gotten to know the jury very well by now and you must know how you can approach them.  Is it a “feels” or “thinks” jury?  Who are the confirmed leaders?  Who is not convinced yet of your client’s position?  You really have to cultivate the art of observation before you do a great closing. 
Some lawyers are very in tune with their jurors, and other live in a fantasy world with respect to what they think is going through a juror’s mind.  I have been a victim of my own delusions before, and I think every lawyer that takes lead at trial has had that happen.  The key is to recognize it as fast as possible and know that much of what you have to go with is intuition and figure out if you are experiencing a true signal or a false positive.
If you are doing the trial solo, then you will have been involved in every single aspect and nuance in the trial.  That is a very good thing when going in to deliver a closing argument.  The downside is you will probably be so exhausted that delivering a closing argument is going to require you dig into yourself and find the energy to finish the job with as much impetus as you had at the beginning of the trial.  Few people have this type of stamina. 
If you are doing the trial with a trial partner or partners, and you know you are the lawyer that will deliver the closing argument, you must know what has occurred throughout trial.  I once did a trial with a trial partner who was going to deliver the closing argument, and that lawyer spent a large part of the trial not paying attention to what was being testified to by the opponent’s experts.  Needless to say, further, on closing, this lawyer choked. 
Pay attention to the entire trial.  You will need to have reviewed the entire surveillance videos.  Read all deposition transcripts and pay attention to testimony through trial.  You must know the jury and they have to perceive you as someone who actually cares about the “justice” aspect of the case.  Your client has to be prepped to understand the same thing.  Especially if the client is not visibly injured, or their property is not catastrophically damaged.  If it is a breach of contract and there is question as to the materiality of the breach, you better make sure your client does not come across like a person that is overreaching. 
On closing argument, it is important that you are able to thwart the opposing sides arguments as much as possible.  Oftentimes you may file motions in limine that address some of the issues that you would like to limit from being stated at argument, and oftentimes the Court will simply defer ruling until the statements are made and an objection raised.  Unfortunately, those type of rulings do not help the situation much because once statements are made in front of the jury, they are having an application upon their perception that cannot be undone by an instruction by the Judge to disregard what they’ve heard. 
The ultimate purpose of the closing argument is to ask the jury to award damages or to limit the award in damages whether due to a request for a finding of no liability, no breach, no permanency in an automobile accident, or due to there not having been any damages at all.  Many young lawyers ask themselves what the limitations are for them to ask for damages.  This is especially true for plaintiff lawyers asking for non-economic damages. 
Some of the questions that arise include whether an expert is needed to talk about calculable mathematical equations.  Other questions involve the calculation of future medical treatment and inflation, or cost in the future.  Still other questions involve what happens if argument is objected to that results in the court sustaining the objection and then the entire ask is lost. 
The answer to a lot of these questions is to read case law on what is permitted in closing argument that does not constitute a trial lawyer testifying.  One of the more interesting methods is to employ what is called the “per diem” argument.  The lawyer relies on the jury’s right to rely on its common sense.  Juries get to make their decision on the law as instructed by the Court, the evidence presented and admitted at trial, and their own common sense.  The “per diem” argument allows a jury to employ their common sense as relates to the law as instructed and the evidence admitted.
Why is it accessing common sense?  Well, mathematics is the universal language and it is based on basic common sense.  So, one of the issues you must address at voire dire is whether there is anyone that is not capable of understanding basic eight grade mathematics involving addition, subtraction, or division. 
The argument goes along the lines of the following: imagine you have a client who is 30 years old and the life expectancy tables show that person is expected to live until the age of 70.  The client is injured enough that the life care planner testified, as did the doctors that there is need for future medical care that is expected to cost $200,000.00.  Testimony is that the client is permanently injured and will never be able to do something of importance for the rest of his or her life. 
We live in a world where everything is calculated by the hour.  We have a 24-hour day cycle, with 8 hours for work, 8 hours for entertainment, and 8 hours for sleep.  That means we have a 16-hour waking day.
Minimum wage in Florida is $8.46 last I checked.  Some of the jury members may think that is not high enough (another issue you should address in venire).  Then you pick a number you think your jury will consider reasonable for an hourly wage given the level of injury, and you must do this by way of your own intuition and feel for the jury.  Then you explain to the jury that because the experts testified that your client has a permanent injury (relevant in an auto crash case), your client has a right to what is called non-economic damages.
You have to explain what those are and how they are divided.   For example, you may tell the jury that non-economic damages are the types of damages that are considered intangible versus tangible.  You can give an example of the difference such as the car crash damaged the vehicle and because of the impact it required repair in a particular dollar amount as a tangible damage.  You can explain that an intangible damage would be something like mental anguish in that the client has been impacted psychologically enough that he or she is not experiencing life in the same way as before the crash, and certainly more so in a negative way.  Then you point to the fact that one has a particular dollar amount attached to it and the other does not.
Then you must explain that non-economic damages are also known as pain and suffering, inconvenience, loss of enjoyment of life, mental anguish, amongst others, and that those losses are not losses that are not real losses, and the law allows for them to be awarded.  Follow up with the question of how much is that worth?  How much is time lost worth?  How much is time worth when living in a condition far less in quality than prior to the crash? Then suggest an hourly amount and tell the jury you will now only suggest to them how to calculate the non-economic damages.  You must tell the jury they do not have to follow your method but that it is only a common sense suggestion for them to use if they agree with it in order to determine how much they would like to award in non-economic damage.
Then you begin calculating it for the jury in the following way.  Let us assume you picked $10 per hour per category.  There are 16 hours in the waking day, and 8 for sleep.  Let us make some assumptions that you will have to adjust in each trial given the evidence and testimony.  This calculation is definitely not the only way it can be done, and the hourly rate is also not the only way the per diem can be calculated.    
However, let us say testimony was that about two times per week your client has trouble sleeping due to nightmares about the crash.  That during the waking day the client is always in pain to some degree.  That every time the client gets into a car there is a breakout in sweat and fear looms every time a semi-truck is within the client’s range of vision.  That the client can no longer go swimming and swimming was his or her favorite pass-time, and that he or she used to go swimming at least three times per week for the length of two hours each time.
Then you begin doing the math in front of the jury.  You can do it on a big white board, or use an elmo, laptop with projection screens, etc.  Today’s courtrooms are filled with uber cool technology.  Anyway, the calculation would go something like this:  16 hours of the waking day in continuous pain at $10 per hour is $160 per day multiplied by 365 for one-year times 40 years remaining in the client’s life is $2,336,000.00 in pain and suffering for the continuous pain.  That is category one and can be justified due to the “continuous pain” testimony.
Then go to the next category out of the four.  Testimony was there was trouble sleeping about two times per week. So, let us make the assumption that testimony justifies claiming 4 hours per week of inconvenience due to having to toss and turn in bed without being able to sleep as a result of discomfort resultant from the injury. So, the math is 4 hours per week at $10 per hour is $40.00 per week times 52 weeks per year times 40 years equals an $83,200.00 award for inconvenience.
The third category would be loss of enjoyment of life.  Let us say testimony allows for an argument that the client is really upset about the swimming inability.  So, the calculation for this category would be, $10 per hour for a 2-hour period three times per week is $20 per day times 3 times per week times 52 weeks times 40 years is $124,800.00 for this category.
The fourth category being that of mental anguish. The client stated he or she has nightmares two times per week, but also stated fear when in an automobile.  We can then separate the two subcategories to claim an additional $83,200.00 due to the sleeping problems, and an additional amount for the fear when in an automobile.  So, let us say the client is in a car twice per day for a period of two hours, and sees a semitruck once per day.  You can tell the jury you will not increase the hourly amount so as to not be overreaching but that you think it would be reasonable to increase it because of the enhanced experience when the client sees a semitruck but that since the fear is always looming in the back of the client’s mind, you will keep the same rate of $10 per hour. 
Now, for this category the calculation would go as follows: $10 per hour times 2 hours per day times 365 days times 40 years is $292,000.00 in mental anguish related to being in a motor vehicle.  Then all the categories must be added up in order to reflect a complete award in non-economic damages. 
In this example the award would be in the amount of:
$2,336,000.00 + $83,200.00 + $124,800.00 + $83,200.00 + $292.000.00 = $2,919,200.00
You must then add cost of future medical care which was another $200,000.00 and any past medical costs and property damage, interests, and if you get a verdict and you had a Proposal for Settlement in place, you get to have your fees paid on top of the verdict.  So, let us assume past medical costs were $100,000.00, and property damage was $25,000.00.  Your verdict would then be well over the three-million-dollar figure.  This is one of the main methods for obtaining big verdicts.  I think the key when making use of the per diem argument, is to make sure not to confuse the jury.  If you confuse the jury by making the calculation process too complicated, the jury may just discard your efforts and decide you are being the typical greedy lawyer.
Defense attorneys may want to limit this type of argument and award by claiming that mental anguish and inconvenience are the same type of damage, or that the continuous pain award should be limited to a lower per hour dollar amount or simply claim that the notion of an hourly amount is not reasonable, and provide with an alternative. Defense attorney’s may also want to seek limitation of the employment of the per diem argument entirely.  The argument would be based on the notion that the per diem argument is not conclusively a right of the plaintiff’s counsel, but rests rather as a discretionary determination by the court. 
A defense attorney may want to employ an alternative to the hourly per diem argument from the standpoint of asking the jury to award a lump sum similar to how an employment severance is paid.  Basically, the argument would be based on the notion that everyone at some point is experiencing sufficient physical ailment and limitation that they seek to retire from working, and that the average retirement age is 65 years of age.  The lawyer may want to point out that oftentimes people retire a little early.  Then limit the award by the years between life expectancy and retirement age and provide for an average savings in a Floridian’s pension or 401k account in the profession of the plaintiff upon retirement as a suggested award.  So for example, if the plaintiff is 45 years of age, and is a plumber, find out what the average plumber has in his or her pension fund at retirement and ask the jury to award that much.
Another type of argument to limit an award in non-economic damages is to suggest all categories be consolidated into one concept known as pain and suffering.  Basically, arguing that pain and suffering includes notions of loss of enjoyment of life, mental anguish, inconvenience, etc.  That way limiting the calculation even if the jury were to award $10 per hour for every waking hour for the life expectancy of a claimant given the previous example. Then the defense attorney must thwart the plaintiff’s lawyer’s rebuttal and state that the plaintiff will ask on rebuttal that if the categories are to be consolidated, then all categories’ hourly rate should be added so that the rate is increased by the number of categories.  Then the defense lawyer must argue that doing so makes the hourly rate unreasonable and outside of what is fair.
Defense attorneys must determine whether there is enough evidence that would allow them to simply ignore the argument for non-economic damages and make a full assault on liability.  Simply stated, if a defense attorney effectively argues that the claimant was at fault at a sufficiently high rate, or that there should not be any liability on the defendant and succeeds, then the per diem argument loses its appeal, and may cause the jury to view the claimants lawyer as greedy or overreaching.  Because of these type of strategies, experienced lawyers state that damages drive the litigation.
There are many types of arguments.  I have seen lawyers overreach, and I have seen some that simply do not ask for a number for non-economic damages.  In sales the saying is that closing requires you to ask and learn to know when to ask or when not to ask.  Sometimes not asking simply allows the buyer to buy and asking can cause them not to buy.  The difference in a request for an award in non-economic damages is that the juror does not know what they are buying because there is no price attached.  My current viewpoint is that one must place a number in the mind of the jury that would allow the jury to effectively value the non-economic damages.  Basically, a jury will give without benefit to themselves on the basis of conscience.  Help them understand without helping yourself.  Remember, Justice is a god!