Improving the damages appeal: a few words on having the last word.

The art of arguing damages involves a trial campaign strategy that begins during voir dire and ends sometime during the rebuttal speech. The discussion here, which addresses only rebuttal techniques and tactics, must be kept in the context of the larger campaign. Keep in mind that what is ultimately argued during this final speech is influenced by the countless factors that precede summation.

In a personal injury case, the strategy you use to argue damages may be no different than in a commercial case. Consider the following account of trial attorney Joe Jamail's rebuttal summation in Pennzoil v. Texaco, the well-known business contract-interference case:

"Still, Jamail knew there was only one way . . . to arouse the jury's passion against Texaco and to embolden it to award . . . [substantial damages]. Jamail had to throw a thunderbolt into the jury box.'"

These words hardly conjure the image of a dull, dry commercial case. But just how many jurors actually change their vote during this final speech is not well documented. It appears that most jurors are already in one camp or the other by this time. But the plaintiffs' attorney can still strive to affect the intensity of juror attitudes. That, of course, is no small matter when damages are at issue. Further, if that rare shift--even of a single vote--occurs, the balance of power can be established and the stage can be set for the majority/minority struggle during deliberations. Thus, the rebuttal speech can never be taken lightly.

Here are 10 items to consider when preparing to argue damages in the plaintiff's rebuttal summation:

1. Don't wait until the rebuttal to introduce damages issues in the case. If you do not discuss damages in the initial closing argument--and the defense does not argue damages at all-you most likely will be barred from arguing damages in rebuttal.(2) Whether the plaintiff can discuss damages generally in the initial closing but save dollar amounts for rebuttal is unclear.(3)

Apart from the risk of preclusion, it is probably a mistake to withhold discussion of amounts with rebuttal. The damages evidence may well be complex and need explanation and bolstering. Devoting time and attention to this explanation during rebuttal may detract from the relatively short, rhetorical persuasive appeal you hope to make to the jury.

Also, the inevitable defense attacks on your damages figures will raise questions for jurors. Of course, they may raise these concerns or doubts about your figures on their own, but now--in the summation rebuttal--you have the chance to provide the jury with answers.

2. Don't soften, or even appear to soften, your demands after the defense summation. If you have carefully considered your damages campaign strategy, and if you wisely left open the dollar amount until your initial closing argument, you should be prepared to stand by that figure regardless of just about anything the defense says during its summation. Changing your money demand during the rebuttal will make you look like you were greedy earlier.

3. Prepare the form and substance of your rebuttal early. The most powerful and persuasive damages appeals during rebutal speeches are those that have been put together well in advance of their delivery. After all, defense summation responses to damages arguments are highly predictable. Prepare both of your summation speeches as if you already knew what your opponents were going to say. Besides, you probably do.

4. Avoid taking a defensive tack. There is a great deal of persuasive power flowing from a plaintiffs' lawyer who takes the offense in rebuttal--as if opposing counsel had never closed. Staying on the offense is the difference between repeatedly saying, "They told you . . ." or "They said . . ." versus "We stand for . . ." and "We have shown you . . . ."

When you have prepared a strong, eloquent rebuttal speech that carries the right damages appeal, you can face the jury for these last few moments as a professional who is confident and in control. This stance can elevate you as a persuasive agent.

5. Try to prevent compromise verdicts when you know your case is strong. Jurors almost always want to negotiate between what you ask for and what the lowest juror expectations are. Do what you can to prevent these compromises among jurors. Straightforwardly present the strength and righteousness of your case as one that should not be compromised. San Francisco lawyer Melvin Belli all but patented this approach with his famous "all or nothing" appeal. In trial after trial, he told jurors to give all monetary damages sought or nothing--but not to compromise the integrity of his client.

6. But use the compromise strategy when in its your case. There will be a time when the best results flow from jurors' bargaining among themselves--a process you set into motion by suggesting your willingness to be fair. This willingness may take the form of conceding that, had the plaintiff been greedy, he or she could have asked for a great deal more in monetary damages.

This approach, however, must be thought through from the beginning of the trial campaign. If you intend to concede some item as a way of appearing fair, and you plan to do so during the rebuttal period, refer to No. 2 above: Don't soften, or even appear to soften, your demands after the defense summation. In other words, avoid the appearance of making that concession because the defense has pushed you to that position.

7. Remember that the extent of liability drives damages amounts. Emphasizing the flagrant nature of the defendant's behavior can often have more impact on the final dollar amount than tallying up all the experts' figures. Jurors frequently acknowledge that their primary reason for awarding significant damages was based on the degree of anger they felt toward the defendant; the figure did not come from the plaintiff's computation. Placing heavy emphasis on the defendant's misbehavior may be the single best strategy of all, and it could render unnecessary any discussion of dollar figures in the rebuttal because you handled this in the initial closing.

In Colorado Interstate Gas Co. v. Natural Gas Pipeline Co., for example, the jury awarded substantial monetary damages for claims of breach of contract, antitrust violations, and tortious interference with business relationships.(4) Yet, plaintiff's counsel Michael L. Beatty, in his rebuttal summation, which filled only seven pages of transcript, did not mention damages. Instead, he repeated 12 times phrases that underscored the value of telling the truth, "shaking hands with a firm grip," and keeping one's word.(5)

8. Close with an emphasis on damages. You will want to convey through whatever means possible a sense of confidence that your side will prevail. To that end, damages should be treated as though they are the central issue in the case.

Jacob Stein, a Washington, D.C., plaintiffs' lawyer, suggests discussing the following in the rebuttal summation:

* The claims and contentions of opposing counsel;

* refutation of claims that can be disproved by the evidence;

* anticipated jury instructions from the judge;

* damages; and

* a request for a verdict.(6)

9. Emphasize that this is the plaintiff's only opportunity for compensation. The amount of damages requested, even in commercial cases, normally includes a component dependent on a prediction of future costs that will stem from the harm done. Remind jurors that the plaintiff will not be able to come back to court later if his or her condition deteriorates or if the defendant's rosy predictions do not come true. This trial is the plaintiff's day in court.

10. Ask jurors to consider how they will feel about their award down the road. Will jurors be able to look back years from now and know they did the right thing, that they did not compromise justice? This appeal is not limited to cases where you represent injured individual plaintiffs; it works when you represent one corporation suing another.

The following comments to jurors may appear at first glance to be a little too dramatic for many lawyers, but in the right case, these words may offer the right touch:

I would like to leave you with a

thought. How do you know when you

have reached a just verdict? You have

reached a just verdict when you have

reached a verdict you can be proud of

I would like you to be proud of your

verdict. I would like you to envision

yourself years into the future, sitting

comfortably on a park bench on a warm

spring day with a grandchild. And I

would like you to imagine that something

occurs which educators call the

teachable moment and that grandchild

begins to ask about fairness, responsibility,

and the American system of justice.

And I would like you to turn to

that grandchild and say: "Let me tell

you about the American system of justice.

I know I was a juror once. Our

jury returned a just verdict, and to this

day I am proud of that verdict."

When you can look that grandchild

in the eye and say that you are proud

of your verdict, then I would like you

to return to this courtroom and look

me in the eye, and look opposing

counsel in the eve, and look [plaintiffs]

in the eve, and tell us your verdict. It

will be a just verdict.(7)

Or, adapt Joe Jamail's summation in the Pennzoil case:

You . . . are the conscience, not only

of this community now in this hour,

but of this country. What you decide

is going to set the standard of morality

in business in America for years to

come.

Now, you can turn your back on

Pennzoil and sad, "OK, that's fine, we

like that kind of deal. That's slick stuff

Go on out and do this kind of thing.

Take the company, fire the employees,

loot the pension fund."

That's not going to happen. I have

got a chance. Me. Juror.

It's you Nobody else but you. Not

me; I am not big enough. Not [the

chairman of Pennzoil's board], not

[Pennzoil's president], not anybody

Not the judge. Only you in our system

can do that. Don't let this opportunity

pass you. Do not.

You can send a message to corporate

America, the business world. Because

it's just people who make up

those things. It isn't as though we are

numbers and robots. We arc people.

And you can tell them that "you are

not going to act away with this."

I ask you to remember that you are

in a once in-a-lifetime situation. It

won't happen again. It just won't

happen. You have a chance to right a

wrong, a serious wrong.

It's going to take some courage. You

got that. You are people of morality

and conscience and strength. Don't let

this opportunity pass you.(8)

The jury returned a sizable verdict, which included punitive damages, in favor of the plaintiff.

And finally, here is a conclusion for a personal injury case rebuttal that asks the jury to look ahead in a slightly different fashion:

After the doctor defendant made the

deadly mistake leaving Judy Grayson

permanently disabled and in a deteriorating

and hopeless position, Judy decided

to come to you for fairness and

justice. She had nowhere else to turn

because only you on this jury have the

final power to do what must be done.

We think it is proper that you who represent

this community should make

this decision. We are happy you are the

ones, and we are equally confident in

what you will do.

We also know you will never forget

his brave woman, Judy Grayson, and

we know you will watch her progress

over the years ahead, that you will

cheer for her as she fights desperately

to regain just a little of what she once

was. And as you watch her, you will

remember with great pride the support

you gave her through your verdict.(9)

As you prepare your next rebuttal speech, we hope you will remember these 10 points. Clearly, you cannot expect to carry the day based on a rebuttal alone. Nevertheless, you also cannot afford to make these last words anything less than your best words.

Notes

(1) THOMAS PETZINGER, OIL & HONOR: THE TEXACO-PENNZOIL WARS 393 (1987). (2) See, e.g., Shaw v Terminal R.R. Ass'n of St. Louis, 344 S.W.2d 32, 37 (Mo. 1961). (3) Compare Weinbauer v. Berbench, 610 S.W.2d 674, 679 (Mo. Ct. App. 1980) ("The omission of a specific amount of damages in the first part of closing argument does not preclude the suggestion of an amount in the second part.") and Pinckard v Dunnavant, 206 So. 2d 340, 343-44 (Ala. 1968) (Since plaintiff mentioned injuries in initial closing, the "mere itemization of the damages resulting from these injuries" in the summation was no new matter.) with Cortez v Macias, 167 Cal. Rptr. 905, 915 (Ct. App. 1980) (reversible error to permit plaintiff to argue for specific amount for the first time in rebuttal because "defendant was thereby deprived of an opportunity to challenge that figure. . . ."). (4) 661 F. Supp. 1448 (1). Wyo. 1987), aff'd in part and rev'd in part, 885 F.2d 683 ( 10th Cir. 1989). (5) Trial transcript on file with the authors. (6) JACOB A. STEIN, CLOSING ARGUMENT: THE ART AND THE LAW [sections]232, at 45 (1994). (7) Id. [sections]317 (1994), at 66, 67. (8) Supra note 1, at 395. (9) RICHARD J. CRAWFORD), THE PERSUASION EDGE: WINNING PSYCHOLOGICAL STRATEGIES AND TACTICS FOR LAWYERS (1989).

Brooke Jackson is a senior partner at Holland & Hart in Denver, Colorado. Richard J. Crawford is the in-house jury consultant for Holland & Hart.