- Jim Ferraro
Getting the Jury to Understand How to Calculate Damages
I was in the middle of my closing arguments in the Castillo-Dupont case. Although I spent the bulk of my 90 minutes going through and reviewing the science of the case, restating the facts to be sure the jury agreed that DuPont and Pine Island Farms were liable, what I also needed the jury to understand was how to calculate damages.
One part of that calculation is easy—that’s the economic consideration, including the cost of schooling, vocational training, lifelong medical treatment, and day-to-day care for Johnny.
The harder part would be getting the jury to comprehend and assess the noneconomic damages, such as pain and suffering or loss of comfort and support.
Explaining to a jury how to value something of that magnitude isn’t easy. A lot of lawyers pull a number out of the air and hope it sticks. Those numbers, however, are usually random—there is no rational basis or formula used to justify that number. One of the many things my background as a CPA taught me, though, is that numbers become less abstract and are more meaningful to people when they have some sort of connotation to them.
I believe it is my job to provide the jury with an equation or formula so the jurors can reasonably calculate the proper amount of monetary damages.
I suggest looking at life in units of time, because everything we do is measured that way. We quantify our sleep, work, play, meals, travel—literally everything we do—in units of time. I use examples of time and compensation the jury can easily comprehend, such as the salaries of a schoolteacher or police officer; and I am always sure to throw in an expert witness who has testified.
Typically, I pick the pay rate of the scummiest witness presented by the defense without naming him to the jury. In this case, I thought it was Dr. Robert Brent, the supposed “King of Teratology.”
I used his rate of pay as an expert witness of $750 an hour and said that if the witness spent 100 hours preparing and testifying in the case, he or she would be entitled to $75,000 for his or her time. Once a jury hears that, I ask the jurors to consider someone like Johnny Castillo and his circumstances and compare them to the teacher, police officer, or expert witness.
“What is Johnny’s job?” I asked the jury. “Johnny’s job is to live life—an entire life—with no eyes. His job was given to him by DuPont. He doesn’t have the option of quitting, retiring, or refusing to continue that job. He has to live with that job for the rest of his life.”
I went on to explain that despite the fact that he has no eyes, his life expectancy isn’t likely to be impaired.
There is certainly no reason to believe that Johnny’s life will be significantly shorter than that of a healthy, sighted person. The life expectancy tables showed that Johnny had at least 70 more years to live in a job he never asked to have. The number I put out there was somewhere between $20 and $30 per hour for Johnny, with a midrange of $25 per hour. It seemed irrational, if not downright insulting, to believe this was an unfair figure to expect the jury to agree to when deciding damages.
What the jurors had to do in this case was consider the bodily injury sustained by Johnny Castillo and any resulting pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, and loss of capacity to enjoy life he had experienced since birth or would experience throughout his future.
The jury also had to consider the reasonable value of medical care, hospitalization and nursing, as well as any other practicable treatment necessary for Johnny, along with any loss of ability to earn money once he reached the age of eighteen.
Juan and Donna Castillo were also entitled to damages in the form of the reasonable value or expense of hospitalization, medical care, nursing, and necessary or reasonable treatment for their child until Johnny reached the age of 18, as well as for loss of companionship, society, love, affection, and solace in the past and in the future due to their child’s injury.
I asked for somewhere between $5 and $10 per hour for their pain and suffering, loss of affection, and solace. With our strong rationale and numbers in such a reasonable range, how could a jury not respond favorably?
In my next post, I continue to recount how I presented to the jury my case for damages for Johnny Castillo and his family.
I’d love to hear from you. How do you calculate your own day in terms of what you believe is just compensation for how you pass your time? Thank you for sharing.