It’s my opinion that when you do have the choice [to discuss dollar amounts in your opening], sometimes you should discuss the dollar amount sought and sometimes you shouldn’t. If the case has merit and damages are significant and supportable, you shouldn’t have any hesitation about discussing amounts in the opening statement. When you discuss amounts, you will predispose a jury to think about the case in substantial terms. In fact, a failure to mention damages in the opening statement may suggest that you lack faith in the merits of your case.

~ Peter Perlman, “Opening Statements”, page 8. [This book may be a bit dated (1994), but principles of persuasion are timeless and human nature relatively constant.  If you want a copy, then try Amazon or go to Alibris.com.]

Talking dollar amounts seems to present a conflict for lawyers.  When and which cases do you talk numbers?

Talking dollar amounts to a jury in opening seems to hit a point of reluctance with trial lawyers. This quote hits it squarely.  First, failure to do so may give the impression  of timidity and you lack confidence in the merits of your cause.  Second, a lawyer cannot ignore the economics of the practice of law else he or she will soon be out of business; the business of living is even more important to the injured client who is even more concerned about his/her future.  And since the dollar amount of an award represents the only way an injured client can receive just and fair compensation, then why not embrace it with confidence, compassion, conviction and credibility.

It is easy to discuss the dollar amounts of special damages, such as wages, medical bills, and future loss of income. This is because their concrete amounts that are dictated by the evidence and the decisions of others, not our judgment or opinion. When we begin extrapolating on pain and suffering, then we are the “point man” on this mission.

When it comes to pain-and-suffering, then that’s another matter. Pain-and-suffering amounts flow from the injuries, and not anything else. However, the insurance companies have for years dictated a formula relative to settlements that the amount of pain and suffering damages  has an correlation to the amount of medical bills related to treatment.  And this formula, as arbitrary as it seems, has become so engrained in our insurance culture that it has infected the way cases are evaluated not just by an adjuster but by jurors.

 

One cannot ignore the elephant in the midst, and if insurance companies and the public seem to correlate pain-and-suffering to the amount of damages, then that is best not to ignore that facet of your claim and its concomitant consequences.  Let the jury know up front.

And this raises the question of what cases do you talk numbers in opening and which do you not?

In this small treatise on opening statements, Mr. Perlman addresses not only the value in discussing amounts of damages in your prayer for relief with the jury in opening, he also addresses the lack of any real common sense connection of the insurance companies’ formula of evaluating the settlement value of the case largely on special damages.

Experience counsel will note how this formula can present a moving line with the insurers.  When you present the medical bills, then they are distinguished and cut out by such devices as diagnostic vs. treatment.

But get real, and look at it in real life.  This short look by Mr. Perlman should help:

When a person has been injured and hospitalized, would a friend, relative, or neighbor be expected to ask “How much were the medical expenses?” No; this would be absurd. The natural response to the situation would be to inquire about the severity of the person’s injury and the extent to which previous activities have been limited. These – not the amounts of hospital bills – are the true measures of suffering.

For this reason, you should spell out in your opening statement the different elements of damages and the effect your client’s injuries have had on his or her routine activities.

~ Peter Perlman, “Opening Statements” page 9.

Dollar amounts of damages are not a dirty little secret.  You shy away from it, then do not be surprise when jurors shy away too.