Make time palpable by using per diem arguments: a well-crafted per diem argument, when allowed by the jurisdiction where you practice, lets jurors see and feel what a difference a day makes to a client in pain.

Most trial lawyers know that showing is often better than telling. This maxim is particularly important when making a per diem damages argument, because a visual aid is a descriptive way to explain intangible or noneconomic damages to a jury. These damages include pain and suffering, disability and disfigurement, and loss of enjoyment of life.

A per diem argument asks the jury to award the plaintiff a certain amount for each year, month, week, or day of suffering since the injury. It also takes into consideration future damages based on the plaintiffs life expectancy. (1)

To make a per diem argument, you assign a specific economic value to the plaintiff's noneconomic loss; say, $50. You then multiply this amount by the amount of time the plaintiff experienced and will continue to experience the loss---for example, two months, or $50 x 60 days. The result--in this example, $3,000--represents the amount the jury should award. (2)

Only 37 states and the District of Columbia allow plaintiff lawyers to either present a bottom-line amount for noneconomic damages or suggest that a specific time unit be used to calculate them. (3) In five of these states--Florida, Montana, Nevada, Utah, and Washington--the decision to permit a per diem argument is solely at the discretion of the trial judge. In some of these states, like Maryland, the argument can be used, but the court must give the jury a detailed, cautionary instruction that the aggregate amount sought is suggestive and not evidentiary or binding. In three of these states--Arizona, South Dakota, and Wisconsin--an aggregate or bottom-line amount can be suggested, but a per diem argument cannot be made.

Courts in 13 states apply the Botta rule, named after the New Jersey decision in Botta v. Bruner, which prohibits plaintiff attorneys from mentioning a bottom-line dollar amount for noneconomic damages or suggesting that a jury apply a per diem formula to calculate them. (4)

Courts in most of these jurisdictions have held that the Botta rule does not apply to wrongful death actions, because the measure of damages in these cases (pecuniary loss to next of kin) is economic and therefore susceptible to a mathematical computation. Plaintiff counsel in these cases may explain to the jury in summation how actuarial tables work and how a self-depleting fund adequate to produce a stated income over a specific period could be calculated. (5)

Some of these jurisdictions have also softened application of the Botta rule in certain situations. For example, plaintiff counsel might be allowed to argue that the jury should use a time unit--"Use a week of pain to evaluate this case"--to calculate damages, but the lawyer would be precluded from suggesting that any dollar amount be applied to the time unit. (6)

Courts in jurisdictions where per diem arguments have been ruled improper often justify the policy by claiming that they

* have no basis in evidence because no witness can testify to the value of a plaintiffs pain and suffering.

* invade the province of the jury.

* give a false sense of certainty to an uncertain subject: The value of pain and suffering, unlike lost income and medical expenses, cannot be determined by mathematical computation.

* may result in excessive verdicts.

Courts in most jurisdictions that allow these arguments say that they

* do not introduce improper evidence, but simply allow proper inferences from the evidence concerning the nature of a plaintiffs pain and suffering.

* are as much within the jury's province as is urging jurors to find negligence or liability.

* give jurors much-needed help in accomplishing the nearly impossible, but necessary, task of assigning a dollar amount to a person's pain and suffering.

* are subject to safeguards, such as cautionary instructions by the trial judge, to prevent the jury from being misled.

* are unlikely to exaggerate the amount needed for adequate compensation because plaintiff counsel know that doing so could provoke an adverse jury reaction.

* are not the final say--courts can reduce an award that seems excessive.

The vision thing

If you use a per diem argument, remember to show as well as tell. Illustrate each item of damages to help guide the jury in preparing its final audit for the plaintiff.

One way to do this is to make a "laundry list" of economic and noneconomic damages. (See Form A, left.) Another possibility is to list past and future damages separately. (See Form B, page 63.) You could also make a similar itemized list representing a spouse's or child's loss of consortium. (See Form C, page 64.)

To calculate the per diem amount, first decide on a fair and reasonable amount of compensation and work backward. For example, if your client would need $300,000 to be made whole, then divide that by the time the client has and will continue to suffer, say, 43 years or 15,705.75 days. That works out to about $19 a day, using the common multiplier of 365.25 days.

Communication experts tell us that people see and respond more quickly to images, especially colored ones, than they do to black-and-white symbols like written words. (7) A strong, logical, and empathetic per diem argument is more effective when it is supported by visual cues.

You can prepare a visual representation simply and inexpensively from materials in your office. If you don't have what you need, you can probably find it at a local hobby shop or nearby stationery or drug store.

For example, you can make a display showing units of time by using the "enlargement" feature on your office copier. Simply enlarge and reproduce a wall calendar for each of the past and future years of your client's pain and suffering. Displaying a series of these calendars--each one representing days of torment for your client--can make a huge impression on a jury. (8)

If you need to show a relatively short period of time, consider using enlarged copies of a page-a-day desk calendar. Use 120 individual calendar pages as a display to show four months of pain and suffering.

Or you can prepare one three-ring binder as an exhibit, or one three-ring binder for each juror. The binders should include a list of significant dates in the client's and his or her family's past and future. Each page might represent one month or year, with attachments. These "yearbooks" might include births, years of education or employment, a time line of past and future treatments, hospitalizations, and past and future damages--any tangible evidence that can illustrate and highlight your client's losses by emphasizing the passage of time.

Another way to make the passage of time more palpable to jurors is to give them some historical perspective. Simply telling a jury that many things have changed since 1964 is unlikely to elicit much emotional response. But saying that 38 years ago the Beatles made their U.S. debut on The Ed Sullivan Show, the average automobile cost $3,000, and the average home cost about $15,000 will make the passage of time seem more real.

Older jurors who may remember historical facts from their own lives are more apt to "feel" the passage of time by recognizing how much has changed in recent decades. Even young jurors will have a stronger emotional response to a then-and-now comparison than to a mere statement that much time has passed.

Sources that can provide historical perspective include encyclopedia yearbooks; "This Date in History" columns in newspapers like the New York Times; the archives of Time, Newsweek, and Life magazines; and nostalgic news reports on TV. The Web site www.yesterdayland.com provides many facts and articles about life in days gone by.

But even a relatively short period of time--a few years--can be an eternity to a client suffering unspeakable loss or pain. To convey how slowly time can seem to pass, compare the period of time in question with a historical event that lasted as long. For example, our country's participation in seemingly interminable wars--World Wars I and II and the Korean conflict--each lasted less than five years.

To say simply that someone has a life expectancy of five years, or that a client's pain and suffering lasted "only five years" is to minimize or ignore the days (1,826.25), hours (43,830), and minutes (2,629,800) that pass slowly for a person in pain. Emphasize that during this time, special moments and precious joys were lost--experiences that can never be recovered.

If the client is young, impress on the jurors how long a year can seem to a person who lacks the perspective of having lived a long life--four years is a quarter of a high school student's life. If the client is elderly, underscore how precious time can be to people who are in the twilight of life. (9)

Cautionary tales 

Some jurisdictions allow plaintiffs to request a special jury verdict form or questionnaire, rather than a general verdict form. A special verdict form asks the jury to itemize damages, because it allows the categories to be awarded. For example, the form might ask what amount of money is fair and reasonable for past lost income; future lost income; past medical expenses; future medical expenses; and past and future pain, suffering, disability, and loss of enjoyment of life. This is an effective tool to help the jury fairly estimate the component parts of a damages request.

But be careful how you create this form. Writing a unit of time and a dollar sign next to a blank line indicating where the jury should write the figure for a noneconomic damages award may constitute an improper suggestion in your jurisdiction.

In one case, a per diem argument came close to being ruled improper: Plaintiff counsel told the jury that a doctor had been paid $176 to stop pain during the plaintiff's surgery. The lawyer then asked the jury what the plaintiff's pain was worth--"A dollar a day, a dollar a week?"

The Wyoming Supreme Court held that although this was "seriously close" to constituting an improper unit-of-time argument, it fell short because it did not ask the jury to assign an arbitrary monetary figure to pain and suffering and then multiply that amount by a specific unit of time. The court affirmed the plaintiff's verdic. (10)

Wherever you practice, it is wise and courteous to advise the trial judge and your adversary, before trial--and certainly before your final argument--that you intend to make a per diem argument. The judge may want to give the jury special instructions, or in some states where per diem arguments are allowed, a judge may exercise discretion and deny you the right to argue a per diem formula. It is always best to learn before trial a particular judge's courtroom custom and standard jury charge on per diem arguments.

Closing argument is your last opportunity to persuade jurors. Remind them that this is the only chance your client has to recover fully and fairly for the injuries sustained. Every plaintiff who proves liability is entitled to a full, fair, and--if the facts warrant it--substantial award. When allowed by the court and the laws of your jurisdiction, a persuasive per diem argument that includes powerful visual images .can help ensure that your client receives just compensation.

Form A

(NAME OF PLAINTIFF)

I. ECONOMIC LOSS

A. PAST MEDICAL EXPENSES

1. Hospital

2. Physical Therapy

3. Doctors

4. Medicine

B. FUTURE MEDICAL EXPENSES

1. Hospital

2. Physical Therapy

3. Doctors

4. Medicine

C. PAST LOST NET EARNINGS

D. FUTURE LOST NET EARNINGS

II. NONECONOMIC LOSS

A. Nature of Each Injury

B. Character & Seriousness of Each Injury

C. Past Pain

D. Future Pain

E. Past Physical & Mental Suffering

F. Future Physical & Mental Suffering

G. Past Discomfort & Distress

H. Future Discomfort & Distress

I. Past Embarrassment

J. Future Embarrassment

K. Past Disability

L. Future Disability

M. Past Impairment

N. Future Impairment

O. Past Loss of Enjoyment of Life

P. Future Loss of Enjoyment of Life

TOTAL

Form B

(NAME OF PLAINTIFF)

I. PAST DAMAGES

A. ECONOMIC LOSS

1. Past Medical Expenses

2. Past Lost Net Earnings

B. NONECONOMIC LOSS

1. The Injury(s)

2. Past Pain

3. Past Physical & Mental Suffering

4. Past Discomfort & Distress

5. Past Embarrassment

6. Past Disability

7. Past Impairment

8. Past Loss of Enjoyment of Life

II. FUTURE DAMAGES

A. ECONOMIC LOSS

1. Future Medical Expenses

2. Future Lost Net Earnings

B. NONECONOMIC LOSS

1. The Injury(s)

2. Future Pain

3. Future Physical & Mental Suffering

4. Future Discomfort & Distress

5. Future Embarrassment

6. Future Disability

7. Future Impairment

8. Future Loss of Enjoyment of Life

Subtotal of Economic Losses

TOTAL

Form C

(NAME OF PLAINTIFF)

I. PAST LOSS OF CONSORTIUM

A. Total Loss of Household Services

B. Total Loss of Society, Companionship & Comfort

C. Total Loss of Consortium (Marital Relations)

D. Worsening of Quality of Household Services

E. Worsening of Society, Companionship & Comfort

F. Worsening of Consortium (Marital Relations)

II. FUTURE LOSS OF CONSORTIUM

A. Total Loss of Household Services

B. Total Loss of Society, Companionship & Comfort

C. Total Loss of Consortium (Marital Relations)

D. Worsening of Quality of Household Services

E. Worsening of Society, Companionship & Comfort

F. Worsening of Consortium (Marital Relations)

TOTAL

Notes

(1.) David R. Lee, Pain Analogies for Closing Argument, 16 N.M. TRIAL L. 165 (1988), at 165; See also JOHN A. TARRANTINO & PATRICIA K. ROCHA, ESTIMATING AND PROVING PERSONAL INJURY DAMAGES [section] 143.1 (1991).

(2.) 75A AM. JUR. 2D Trial [section] 561 (2002).

(3.) The jurisdictions that allow either a bottom line or per diem argument for noneconomic damages are: Alabama, Alaska, Arizona, Arkansas, California, Colorado, the District of Columbia, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, and Wisconsin.

(4.) 138 A.2d 713 (N.J. 1958).

(5.) See, e.g., Paradossi v. Reinauer Bros. Oil Co., 146 A.2d 515 (N.J. Super. Ct. App. Div. 1958).

(6.) N.J. COURT RULE 1.7-1(b) (amended 1982).

(7.) Brian J. Panish & Christine D. Spagnoli, Take Technology to Trial, TRIAL, July 2002, at 39.

(8.) JIM D. EVERETT, MODERN TRIALS (2d ed. 1982).

(9.) See, e.g., Thomas Vesper, The Underestimated Plaintiffs: Proof and Argument of Damages in Cases Involving the Elderly, TRIAL LAW., Nov.-Dec. 2000, at 488.

(10.) Combined Ins. Co. v. Sinclair, 584 P.2d 1034 (Wyo. 1978).

Thomas J. Vesper practices law in West Atlantic City, New Jersey: Richard Orr is a lawyer in Mount Holly, New Jersey.