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Anatomy of a Civil Trial

this arm is really causing you a problem. But he didn’t do that. He scared him to death, and they felt under the gun and didn’t have time to do that. So let’s talk about what’s really important in this case. What

should he pay for what he did, he and his company? I want to suggest to you, first off, that it’s not what you take

from a man; it’s what you leave him with. [Tis piece of the closing on damages is stolen from Moe

Levine’s “whole man” argument.] Taking a thumb and two fingers at first, and then leaving

the entire numb arm and not having positional sense, so that you don’t even know where the arm is. At first, you know, it doesn’t sound like that much of a deal. But it’s what you leave the person with, and how it affects their entire life. [Use of biblical quotations depends on how well received

they are likely to be in your jurisdiction. I chose a very light, glancing reference. Te point of quoting from the Bible or any standard reference goes back to our “Values Matter” discussion in the opening chapter.] It’s in the jury instructions. But interestingly enough, it goes

way back. Paul’s letter to the Corinthians says if one part of the body suffers, all of the other parts suffer with it. Well, in our jury instructions we embody that idea right here. Te Judge listed a bunch of things that you need to consider. [Tis next quote from the standard jury instructions is

something many of us, myself included, have brushed over many times without pausing to consider how profound it really is: the effect of the injury on the overall well-being of the plaintiff.] And the very second one on the list that she said you shall

consider is the effect such injuries have on the overall physical and mental health and well-being of the patient. Now, farther down on the list is stuff that it’s easy to put dollars

on, like medical bills and stuff like that. And if that’s all we were doing in this case, we wouldn’t need you, frankly, as a computer could do that. But we are talking about what the community thinks is important, and what really happened to this man. You heard that this man is a reliable friend. Some of the

other things on the glass sculpture I could mention are trust and strength, balance to judgment, integrity, nurturing family, honesty. You heard Claudia Bryant come in and tell us something

very important about him. She said it quietly. She said in my experience men show they care by what they do for other people. He’s not a talker. He’s a doer. He loves doing stuff, loved doing stuff for people. Whether it’s snowplowing for the neighbors, without even being asked; cooking at the Elks Club on the Friday nights and getting all the steaks the exact right done, doneness; raising his granddaughter in his own home. All of those things. But now, in essence, he’s been forced into a new job. It is

just like, on April 26, 2007, when this man wakes up and he’s got this terrible pain in the entire arm, if someone were to tell him the truth, which is, Mr. Wood, I’m afraid you have just suffered a terrible injury that’s going to affect you for the rest of your life and it’s going to take away all the pleasures that you had in life. You were a doer before; now you’re going to be a bystander, you’ll

ride on the back of the ATV with your wife. You’ll be able to get on the boat, but you’re not going to be able to fish or hunt or any of the things that you like to do. [I’ve always found that arguing damages prospectively, making the time of the injury the focal point and looking forward from there, is a vivid way to bring home the impact of an injury on a plaintiff and how the justice system will fairly consider it. Note the pivot point below.] But the good news is, under our system of justice, if

somebody does that wrongfully to you, puts you into a job that you don’t want, they have to pay for it, they have to pay a reasonable sum for it. And we’re going to bring in a group of citizens to consider what it’s worth, and they’ll have to consider the length of the job that the person is being put in. And so from age sixty, you’re talking a little more than

twenty years; from his current age, now three years later, he’s got about eighteen and a half years. So those are years that he’s going to be put into the job that he did not want and did not ask for and did nothing to deserve. [“Per diem” arguments on damages are artificial, because

no one goes through life multiplying the number of days times some arbitrary number, except perhaps the public radio fund- raisers who are trying to wheedle an annual donation of $365 out of us. But an annual salary or wage for forcing someone into a new job is something people can relate to.] And what is it reasonable to pay for that job? I’m going to suggest to you that a fair number is $50,000 a year, and that would

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GAB00409_Trial Reporter Ad2.indd 1 Trial Reporter / Spring 2012 4512/15/09 3:24 PM

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