Speeding on the Interstate and Getting Big Verdicts
Aug. 5, 2019
SPEEDING ON THE INTERSTATE AND ASKING FOR BIG VERDICTS
By John W. Dill, Esquire
Velocitation is a phenomenon caused by driving for long periods at high speeds. A driver may experience velocitation when coming off of the highway; the change in speed makes him or her think that the car is going much slower than it actually is.
We have all done it. We drive eighty on the Interstate then pull off on the exit and feel we are crawling along like a snail. In reality, we are barreling along at seventy in a thirty-five mile per hour zone. This is known as “velocitation”. We can use this phenomenon as Plaintiff’s lawyers to drive the damages up by gradually accommodating the jury to larger numbers.
I have repeatedly seen the Plaintiff’s lawyers fail to talk about money damages and the time value of money until the end of their closing argument. Then they drop a huge number on the jury without any sense of context. A lawyer may say “and because of all her pain and suffering, we are asking for ten million dollars.”
The same lawyer is likely shocked by the change in body language from the jurors. As an excuse, the lawyer may argue “I’m asking for a large number so if they come in for less then I’m good.” However, what if the lesser number is a big fat zero?
Our research shows us that juries can reach large numbers in pain and suffering, but they must be given the tools early to get there. We like to start in Voir Dire talking about the time value of money, and how much things cost over time. With the economist, we want to talk about life expectancy and value of money over time. Then when we reach closing argument we harken back to these anchors and start pushing our jurors into a higher damages bracket.
How is this achieved? We often use a per diem argument in the form of a sample want ad with an hourly rate. It is important to show the methodology that accompanies the final numbers. Jurors tend to employ formulas when coming to damages numbers. For example, we may use the following in a fall down case:
HELP WANTED: Applicant needed for study on long term effects of violent fall. The applicant will be required to break arms and shatter knee. Long term loss of use of leg also necessary. The applicant must be willing to lose mobility and forego prior activities. Assistance from others a pre-requisite. No vacation available.
“No person would volunteer for such a position, and in this case, Ms. Smith certainly didn’t volunteer. But what is a reasonable wage to make up for what she went through in the past and will for another say 15 years? Keep in mind this is every waking hour with pain and lack of mobility, 16 hours a day 365 days a year. The only relief is in sleep. What is a fair hourly wage for that job described above? $10 dollars per hour? $15 per hour, not even the minimum wage in Florida. $20 per hour? That is for you to determine and I suggest these as a way to put it in perspective. Let’s take a look:”
I’ll have a Keynote slide with the $10, $15, $20. I use the formula of 10 times 16 times 365 times 25 (assuming that is her life expectancy and time since the fall). Then we see those numbers visually of:
10 per hour times 16 hours a day times 365 days a year times 25 years = $1,460,000
15 per hour times 16 hours a day times 365 days a year times 25 years = $2,190,000
20 per hour times 16 hours a day times 365 days a year times 25 years = $2,920,000
Studies show most people will choose a middle number of three, and I am driving the jurors to the 2.19 mil so they think they have discounted it. Then I add that to the meds and other numbers for the final amount. Not unlike a speeding car exiting the interstate whose driver believes he has slowed down when he is still speeding, I have successfully moved the jury to an overall damages number without shocking them with a huge number lacking foundation.