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Scura, Wigfield, Heyer, Stevens & Cammarota Blog

How Are Damages Argued to a Jury in a Personal Injury Case in New Jersey

[fa icon="clock-o"] April 2, 2019 [fa icon="user"] John J. Scura III [fa icon="folder-open'] Personal Injury

Personal-Injury-CasesIn personal injuries cases, the courts in New Jersey do not allow the attorney to ask the jury to award a specific amount of money for pain and suffering or non-economic losses.  For example, an attorney cannot argue that my client should be entitled to 2 million dollars for her permanent back injury that required a fusion surgery and has limited her life in all ways.  In some states the attorney can argue in that way and suggest a specific number.   

You Cannot Argue a Specific Number For Pain and Suffering

In New Jersey, you can lay out for the jury all of the injuries your client sustained and ask for a number that fairly and reasonably compensates the injured person for pain and suffering, impairment of quality of life, limitations, etc.  The model jury charge on damages outlining for the jury the factors that they should consider is as follows:

If you find for Plaintiff, he or she is entitled to recover fair and reasonable compensation for the full extent of the harm and losses caused, no more and no less.

Fair and reasonable compensation means to make Plaintiff whole for any permanent or temporary injury and the consequences of that injury (or injuries) caused by the defendant’s negligence (or other fault). 

The law on compensation recognizes that a plaintiff may recover for any disability or impairment that he or she suffers as a result of his or her injuries.  Disability or impairment means worsening, weakening or loss of faculties, health or ability to participate in activities.  The law also permits a plaintiff to recover for the loss of enjoyment of life, which means the inability to pursue one's normal pleasure and enjoyment. You must determine how the injury has deprived [Plaintiff] of [his] [her] customary activities as a whole person. This measure of compensation is what a reasonable person would consider to be adequate and just under all the circumstances of the case to make [Plaintiff] whole for [his] [her] injury and [his] [her] consequent disability, impairment, and the loss of the enjoyment of life. The law also recognizes as proper items for recovery, the pain, physical and mental suffering, discomfort, and distress that a person may endure as a natural consequence of the injury.  Again, this item of recovery is what a reasonable person would consider to be adequate and just under all the circumstances to compensate [Plaintiff]

Here are some factors you may want to take into account when fixing the amount of the verdict for disability impairment, loss of enjoyment of life, pain and suffering.  You may consider [Plaintiff’s] age, usual activities, occupation, family responsibilities and similar relevant facts in evaluating the probable consequences of any injuries you find [he] [she] has suffered.  You are to consider the nature, character and seriousness of any injury, discomfort or disfigurement.  You must also consider their duration, as any verdict you make must cover the harms and losses suffered by [Plaintiff] since the accident, to the present time, and even into the future if you find that [Plaintiff's] injury and its consequence have continued to the present time or can reasonably be expected to continue into the future. 

The law does not provide you with any table, schedule or formula by which a person's pain and suffering, disability, impairment, and loss of enjoyment of life may be measured in terms of money.  The amount is left to your sound discretion.  You are to use your sound discretion to attempt to make the plaintiff whole, so far as money can do so, based upon reason and sound judgment, without any passion, prejudice, bias or sympathy.  You each know from your common experience the nature of pain and suffering, disability, impairment and loss of enjoyment of life and you also know the nature and function of money.  The task of equating the two so as to arrive at a fair and reasonable award of compensation requires a high order of human judgment.  For this reason, the law can provide no better yardstick for your guidance than your own impartial judgment and experience. 

You are to exercise sound judgment as to what is fair, just and reasonable under all the circumstances.  You should, of course, consider the testimony of [Plaintiff] on the subject of [his] [her] discomforts.  You should also scrutinize all the other evidence presented by both parties on this subject, including the testimony of the doctors.  After considering the evidence, you shall award a lump sum of money that will fairly and reasonably compensate [Plaintiff] for [his] [her] pain, suffering, disability, impairment, and loss of enjoyment of life proximately caused by defendant’s negligence (or other fault). 

You can Argue the Time Unit Rule to the Jury as to Damages

While these factors listed above may be argued to a jury under the specific facts of your case, a specific number cannot be mentioned.   The Court Rules, however, do allow the attorney for the plaintiff to argue the time unit rule as a way for the jury to measure damages.   New Jersey Court Rule 1:7-1 (b) provides as follows: “(b) Closing Statement.  After the close of the evidence and except as may be otherwise ordered by the court, the parties may make closing statements in the reverse order of opening statements.  In civil cases any party may suggest to the trier of fact, with respect to any element of damages, that unliquidated damages be calculated on a time-unit basis without reference to a specific sum.  In the event such comments are made to a jury, the judge shall instruct the jury that they are argument only and do not constitute evidence.”  (emphasis added).

This reference in the court rule is referred to as the time unit rule.  Under the time unit rule, counsel is permitted to argue to the jury the appropriateness of applying a time unit calculation in determining damages for pain and suffering, disability, impairment and loss of enjoyment of life.   The attorney is still not allowed to mention a specific amount of money for the calculation of damages.  However, they can argue that the jury can use an amount of money in relation to an amount of time in calculating damages.  As per the rule, it is only a suggestive formula the jury can use and does not constitute evidence.

Under the time unit rule, for example, the attorney can argue that the plaintiff has a life expectancy of another 40 years.  40 years is 14,600 days which is 233,600 waking hours (16 hours in a day).  The attorney can argue that the jury should determine an amount of money equivalent to a waking hour of pain that the plaintiff must undergo and then multiply that figure the number of hours.   Alternatively, the attorney can just argue to the jury to fix a number equivalent to what a day of pain is worth and multiply by that figure.   As part of the plaintiff’s proofs, the attorney must first establish that the pain is constant, that the pain will continue into the future and the plaintiff’s life expectancy.  The time unit rule can be used a number of different creative ways.  Bottom line is that you are trying to fight for your client and have the jury fully understand and evaluate the full impact the injuries have had on your client’s life.

The Court adopted the time unit rule to resolve the problems created by the rule that counsel not argue a specific monetary amount in summation.  Botta v. Brunner, 26 N.J. 82 (1958).  In Botta v. Brunner, the Supreme Court of New Jersey barred the argument of a specific number to a jury, reasoning:

Jurors know the nature of pain, embarrassment and inconvenience, and they also know the nature of money. Their problem of equating the two to afford reasonable and just compensation calls for a high order of human judgment, and the law has provided no better yardstick for their guidance than their enlightened conscience. Their problem is not one of mathematical calculation but involves an exercise of their sound judgment of what is fair and right.

On Economic Loss You Can Argue a Specific Sum of Money to the Jury

The prohibition on arguing a specific number applies only to non-economic loss, such as pain and suffering and loss of quality of life.  With respect to economic loss, counsel may argue a specific number if it is supported by the evidence.  Economic loss includes such items as past and future medical expenses, loss of past and future earnings, loss of personal property, costs of repair or replacement, the economic value of domestic services, and loss wages or business opportunities.

Arguing Life Expectancy to the Jury

In New Jersey, there is a life expectancy chart depending on the plaintiff’s age at the time of trial.  That chart can be found at the New Jersey Court web site.  The life expectancy chart is part of the New Jersey Court Rules and if the plaintiff establishes through medical testimony that the injuries will be permanent then plaintiff is permitted to argue that the pain, suffering and loss of quality of life will continue throughout the injured person’s life.

The model jury instruction on the time unit rule approved by the Supreme Court is as follows:

(ii)  TIME UNIT RULE (Approved 04/2015)

[The following charge may be given where appropriate and with proper notice by counsel and in keeping with Rule 1:7-1(b)]

Our Rules of Court permit counsel to argue to the jury the appropriateness of applying a time unit calculation in determining damages for pain and suffering, disability, impairment and loss of enjoyment of life.  Counsel are not permitted to mention specific amounts of money for the calculation of such damages.  They are permitted, however, to argue that you may employ a time unit calculation, that is, to consider an amount of money in relation to an amount of time, when determining such damages.

I charge you, Ladies and Gentlemen, that the argument of counsel with reference to calculation of damages on a time-unit basis is argument only and is not to be considered by you as evidence.  Counsel’s statements are a suggestion to you as to how you might determine damages for pain and suffering, disability, impairment and loss of enjoyment of life.  You are free to accept or reject this argument as you deem appropriate.  I remind you that you are to make a determination on the amount of damages based on the evidence presented and the instructions I have given you on damages.

I charge you, Ladies and Gentlemen, that the argument of counsel with reference to calculation of damages on a time-unit basis is argument only and is not to be considered by you as evidence.  Counsel’s statements are a suggestion to you as to how you might determine damages for pain and suffering, disability, impairment and loss of enjoyment of life.  You are free to accept or reject this argument as you deem appropriate.  I remind you that you are to make a determination on the amount of damages based on the evidence presented and the instructions I have given you on damages.

If you have been injured through the fault of another, please feel free to call one of our attorneys in our New Jersey offices and discuss your options and how to best proceed.  It is important to speak to an attorney early on after the accident to make sure that your rights are fully protected.

 

 

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Posted by John J. Scura III

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