The jurisdictions that approved per diem arguments generally fall into two categories, the first declare per diem arguments proper; the second declare them proper only if accompanied by a cautionary instruction. Courts holding per diem arguments proper, or proper with caution, do so for the following reasons:
- Per diem arguments do not constitute the introduction of improper evidence, but are simply proper inferences from the evidence introduced at trial concerning the nature of the plaintiff’s pain and suffering;
- It is not more of an invasion of the province of the jury to suggest a mathematical formula for fixing damages for pain and suffering than to urge the jury to find the defendant negligent;
- Although pain and dollars are not equivalent, the jury is forced to equate the two anyway and a per diem argument gives the jury the needed assistance in accomplishing the task;
- There are safeguards to prevent the jury from being misled, such as cautionary instructions;
- There is a risk of over-persuasion if the claim by the plaintiff’s counsel is too exaggerated; and
- Both trial and appellate courts can reduce an award if it is excessive.
I’d suggest the first and most important assessment is that of your jury. When opposing counsel puts up that gigantic number, you need to ask yourself if the jury bought it or did it explode in counsel’s face. If the argument exploded in counsel’s face, you probably don’t need to bother with it. If the jury appears to be following the argument, there are certainly arguments that can be made, some of which should be made before you find yourself in front of the jury. Here are some suggestions for handling a per diem argument.
In anticipation of the use of a mathematical formula, it would be prudent to ask for a jury instruction. In Minnesota, courts only permit per diem arguments if the trial court instructs the jury that the mathematical formula can only be used for “illustrative purposes.” See Christy v. Saltierman, 288 Minn. 144, 179 N.W.2d 288 (1970); Hallada v. Great Northern Railway, 244 Minn. 81, 69 N.W.2d 673 (1955). One could suggest in the jury instruction that plaintiff’s argument is only one method of reasoning which the jury can employ. See Eastern Shore Public Serv. Co. v. Corbett, 227 Md. 411, 177 A.2d 701 (1962). The jury instruction should also point out that closing arguments do not constitute evidence to be used for or against a party; thus, suggested dollar amounts advanced by counsel do not constitute evidence to be considered by the jury. See Mileski v. Long Island R.R. Co., 499 F.2d 1169 (2d Cir. 1974).
If a mathematical formula is going to be used, to try to force opposing counsel to utilize the argument in closing and not rebuttal. An Ohio court suggested that if plaintiff’s per diem argument came too late in trial, the defendant would be disadvantaged and prejudiced by not being able to properly rebut the argument. Grossnickle v. Germantown, 3 Ohio St. 2d 96, 209 N.E.2d 442 (1965).
Defense counsel’s own argument should point out the flaws in asking a jury to apply a mathematical formula. One flaw in per diem arguments is that they “invade the province of the jury.” Defense counsel should empower the jury. Remind the jury of their pivotal role at trial. It is the jury’s job to find the facts, which includes the amount of pain suffered by the plaintiff. It is the jury’s job, alone, to determine how to compensate the plaintiff. Thus, suggestions by counsel should only be taken with a grain of salt, perhaps. Suggest that if one were to allow plaintiff’s counsel to the find facts based upon a formula, it will render the jury completely powerless. See Crum v. Ward, 146 W. Va. 421, 122 S.E.2d 18 (1961).