Trial Attorney Blog

What follows are excerpts from an article one of our lawyers wrote about Closing Arguments. We have previously posted Trial Techniques articles about effective cross-examination. As this article is broken ito separate parts, we will post the various subsections and suggestions in separate posts over the next several weeks. We hope this will be helpful to you if you are a practicing atorney and ,if a potential client, will give you insight into what a Trial lawyer should do to effectively represent your interests:

The most gifted Trial lawyers among us are highly successful orators. I use the term gifted because such innate ability is not common among all Trial lawyers. Those who can make a jury cry and stir their emotions with natural ease and innate ability are the few among us with this gift of oratory. These are the “show horses” of our profession. For the rest of us, we have to learn to be work horses in order to be successful at giving a winning summation. If we follow sound fundamentals, just like a football team, we can still deliver a winning summation even if we are not particularly gifted. The key is good, old fashioned, hard work. If one prepares properly and uses sound fundamentals, there is no reason one cannot be successful. What follows therefore are practical suggestions on how to go about giving a sound closing argument that is likely to yield a successful result.

A. PREPARE, PREPARE, PREPARE

In a wrongful death case, a jury will be instructed that they should return a verdict for the “full value of the life of the decedent.” This means not only any economic damages caused by a premature and wrongful death, but also “non-economic damages.” How is this calculated and how should jury be instructed to reach such an award? Interestingly enough, the jury will be instructed that they should rely upon their “enlightened conscious” in making such determinations.
If a 28-year old is killed and has a life expectancy of 46 years, as an example, one way to argue for the loss of the “intangible value” of life itself is to urge the jury to make an award based on each lost year of life. If, for example, the jury should determine that the value of life in Georgia for a 28-year old looking forward to his or her future is $100,000.00 per year, then the damages would be 46 years X $100,000.00 or $4.6 million. Is $4.6 million an adequate award for the loss of human life for an otherwise healthy 28-year old whose life is abruptly and wrongfully ended due to the negligence of a third party? Obviously, reasonable minds could differ over the sum to be awarded in such a case. Should it be $150,000/yr., $200,000/yr or some lesser sum?
Baseball players are sometimes paid 10, 20, 30 million dollars a year. Good basketball players can make hundreds of millions of dollars. Is one year of labor in the NFL worth 46 years of the value of a average man’s life? These are the kinds of debates juries have to engage in when determining “the full value of the life of the decedent.” Again, the intangible value of life itself is probably the most difficult aspect of the calculus in these cases, but nonetheless, the intangible value of life is worth far more than is the economic loss caused by a wrongful death. Yes, the wrongful death results in a loss of income and yes, the loss of income is part of the measure of damages, but the intangible value is the greater value and thus the greater difficulty for any jury.

As stated in earlier blogs, in Georgia, the measure of damages for a wrongful death is “the full value of the life of the decedent.” One component of the full value of the life of the decedent is the loss of earnings and loss of income. If a 28-year old dies while earning $40,000.00 per year and he/she will work until age 70 (which is another 42 years) one simple way to calculate the loss of wages would be 42 years times $40,000.00 per year. However, such a simple equation might not account for future raises, future benefits and a better revenue stream as the decedent proceeds in their career path.
A jury sometimes can be aided by the testimony of an economist, who can show the jury based on statistical data what an earnings history would look like for someone with a similar background and education, what kind of benefits they could expect to earn, etc. Of course, in today’s economic times, a jury also has to determine whether an income stream would remain unabated, whether the decedent would likely receive raises, etc. While there are no clear cut answers to these difficult questions, nonetheless, juries do have to determine what the “economic loss” is in a wrongful death context. In the hypothetical wrongful death case a 28-year old, has been killed while earning $40,00.00 per year. What would constitute fair compensation for the loss of such a promising life if the person was already earning $40,000.00 per year and had even brighter future prospects? Whether an economist is employed or whether the Annuity Mortality Table is utilized simply to argue for compensation over the remaining 42 years of the life of the decedent, either way, the calculus is not definitively defined, but is instead left to “the enlightened conscience” of fair and impartial jurors seeking justice in a wrongful death case. That is the measure – counsel must help the jury use this measure if fair compensation is to be achieved.

When someone is killed due to the negligence of a third party, a wrongful death action can be filed in order to recover the “full value of the life of the decedent” as determined by the “enlightened conscience” of fair and impartial jurors. The measure of damages is defined exactly this way under Georgia law. That being, what amount of compensation would provide adequate reimbursement for “the full value” of the life of the decedent. This seems almost impossible to calculate because one can put no price tag on the value of human life. We all have only one life to live and if our life is wrongfully terminated due to the negligence of a third party, no amount of money can ever compensate for such a loss. Nonetheless, in our legal system, juries are instructed that they should award the full value of the life of the decedent as demonstrated by the evidence if they find that a person died due to the negligence or misconduct of a third party.

In determining the full value of the life of any decedent, the jury has to look at the background of the decedent, what they had accomplished in their life, what their prospects were for the future, etc. They have to look at the age and health of the decedent, their economic potential, their earnings history, etc. Obviously, all such considerations are complicated if the decedent is a child, is elderly or someone who is disabled. Thus, the law advises the jury that they should look not only to the tangible losses caused by the wrongful death (that being a loss of income) but also the intangible value of life itself, that being what the decedent lost at the time of their death.

Georgia law is unique in that it measures damages not from the standpoint of the surviving members of the decedent’s family, but rather from the standpoint of the decedent himself/herself. The jury is supposed to look at what the decedent lost, that being relationships with family members, marriage, relationships with children, loss of income, loss of earning potential and loss of the joy of life itself. Again, this is a very difficult calculus for any jury but nonetheless this is exactly what juries in Georgia are told to do.

Negligent security cases typically arise in the context of a victim of a criminal assault either at an apartment complex or motel. If the apartment complex provides security but negligently does so, and a tenant is attacked at a time an attack is foreseeable, an apartment complex can be held liable even if the damages were perpetrated by a criminal third party. Similarly, in a motel setting, if the motel is aware that their tenants are at heightened risk of attacks from criminals and fail to take appropriate security measures to protect their guests, under certain limited circumstances, the motel owner can be liable for an attack upon the customer.

Under Georgia law, generally, there is no duty to protect invitees from the criminal acts of third parties. For such a duty to exist, a plaintiff must demonstrate foreseeability. Foreseeability is heightened and superior knowledge by the owner or occupier of the dangerous condition created by a third person. When a victim seeks to demonstrate knowledge on the part of a defendant by presenting evidence of prior crimes allegedly known to the owner/occupier, substantial similarity between the crimes is required. In other words, if someone is the victim of a rape then forced entries into motel rooms, other rapes or other similar crimes will typically be required to be proven in order to demonstrate that it was foreseeable that a guest of the motel may have been attacked by a criminal third party absent adequate security for their protection. As stated, generally, there is no liability for third party criminal acts because such acts are deemed to be intervening acts sufficient of themselves to have caused the damages and injuries without the contributing influence of the landowner/occupier.

In today’s crime ridden society, it is obviously foreseeable that anybody can be victimized by crime at any time or place. What is legally necessary in these cases is superior knowledge. If a motel owner knows that their guests have been subject to numerous crimes on their property and fails to take steps to either warn their guests and/or protect them, there can be liability because of the superior knowledge of the landowner/occupier. Similarly, if an apartment complex is aware that tenants are at risk of being raped or attacked by criminals because of superior knowledge of criminal activity on property they own, they too can be held civilly liable for damages caused by the rapist. Of course, before they can be held liable, they must also be negligent, that is failing to provide adequate security in the face of such superior knowledge.

It was announced today that Ford Motor Company has recalled 2005 and 2006 year model F-150 pickup trucks because of problems with unexpected and unintended airbag deployments. According to the National Highway Traffic and Safety Administration, the recall involves approximately 150,000 F-150 pickup trucks. It appears that front airbags have been deploying unannounced. Obviously, this could lead to an accident if the airbag deploys while the vehicle is being driven or otherwise causes a distraction that might cause a driver to lose control. Ford officials have stated that an improperly installed wire in the steering wheel may be the cause of the random unanticipated airbag deployments. Hopefully, all of these vehicles will be repaired without further incident because otherwise a serious collision could occur.
Any owner of a 2005/2006 F-150 pick up truck should immediately take the vehicle in for inspection and repair. Otherwise, an airbag could deploy at a most inconvenient time which could result in a serious accident.

Cribs, playpens, and bassinets continue to injure and kill infants with alarming frequency.

A study published this week in the journal Pediatrics reveals the alarming frequency of injuries to babies who have been placed in cribs, playpens or bassinets.

A review of emergency-room treatments for more than 181,000 babies age 2 and under from 1990 to 2008 showed an average of 113 deaths per year from accidents associated with those three pieces of nursery equipment.

We have previously written about the importance of uninsured motorist coverage, particularly in today’s economic times. In this article we wish to reemphasize how important it is that Georgia residents protect themselves with uninsured motorist coverage if at all possible within their family budget. The reason for this is because more and more motorists are driving with the minimum limits required by law, which is only $25,000.00 per person and many are driving with no insurance whatsoever, taking their chances with the law. The economy, of course, is the reason behind this, but the problem arises when an innocent third party is severely injured by the negligence of an uninsured or underinsured motorist.

If a motorist with minimum limits of coverage strikes another vehicle and hypothetically a passenger in that vehicle suffers a broken neck or back, clearly $25,000.00 will not even cover the medical expenses much less provide reimbursement for pain and suffering, lost wages and the permanent disability that may be caused by the negligence. Theoretically, of course, there is still a claim against the negligent driver, but if they only have $25,000.00 in coverage, they probably have no assets sufficient to satisfy any judgment. Under this set of circumstances, the only way the innocent person can protect themselves from those who are driving with either minimum or no insurance is to have uninsured motorist coverage.

The way uninsured motorist coverage works is that if you are in an accident as an innocent person and injured as a result of the negligence of either an uninsured or underinsured driver, then to the extent, if you have uninsured coverage as part of your own policy of insurance, you can have your own insurance company be responsible for the injuries and damages you sustained since you have paid for such coverage. In the hypothetical case posed, if the innocent victim had $300,000.00 in uninsured motorist coverage, rather than being left with only $25,000.00 from the at fault driver, they would at least have access to $300,000.00 as compensation for their damages through their own uninsured/underinsured motorist coverage.

The Consumer Product Safety Commission has recalled nearly 2 million baby monitors due to the risk of infant strangulation by the monitors’ electrical cords. The CPCS initiated the recall due to seven cases of infant strangulation in recent months.

The reported injuries and deaths include:

A 10 month-old Washington, D.C. infant died in March when she became tangled in the camera cord of a Summer infant monitor. The monitor camera had been attached to the top rail of her crib;

Our firm is often contacted by those who have been victimized by a criminal act seeking advice as to whether they have a claim against the perpetrator of the crime. These cases come to us in a variety of different contexts. Sometimes a rape victim is interested in determining whether they have a claim against a hotel that negligently allowed the attack by a former employee or failed to provide adequate security with respect to the security of their room. We have had similar calls from rape victims seeking to file claims against apartment complexes where there were prior rapes (and a failure to notify the tenant/victim of the danger) and/or failure to provide adequate security at the complex. In other contexts, we may be contacted by those who have been victimized by drunk drivers or those who have been victimized by an assault and battery.
All “victim/tort” cases are factually unique, of course, and require an analysis of the facts and circumstances. Sometimes the criminal defendant may be judgment proof and a civil case against the perpetrator may be a complete waste of time from an economic standpoint. However, there sometimes can be third party liability in many of these cases. For example, even if the rapist primarily caused the damage, obviously, the negligent apartment owner and/or hotelier could be liable as well. What complicates these cases is that Georgia law now provides for apportionment of damages between those who may be jointly responsible for inflicting the damages. In a rape case, while it may be argued that the rapist caused virtually all the damages, obviously, the rapist may not have ever had the opportunity or access to the victim without the negligence of the owner/occupier of the property. The apportionment of dangers is now up to the jury depending on the facts of the case.
All victims of crimes obviously endure the trauma of being victimized by the crime. The criminal justice system provides very limited relief for damages in such cases. While there is mandatory restitution for property crimes, many criminal defendants do not have sufficient assets to make full restitution. Accordingly, in any case where a crime victim has the potential for a recovery in a particular case, they should consult with counsel experienced in such matters.