low. The tough part is going to be what number you do suggest. Obviously, you have to suggest a number that you can live with as a defendant if, in fact, the case comes to that, but it must be credible. It must consider each realistically com· pensable element of damage before the jury and have some logic and reason to it, as opposed to being "out of the air." 2. Doubling Rule Whatever number you suggest needs to be enough that your client can live with it if that number is dou· bled. Most plaintiff's lawyers (after the administration of truth serum) in closing "ask for more than what they really expect," and figure that most jurors are at least going to cut it in half. Likewise, the rule applies to the defendant in suggesting a number as well. whatever number you suggest, if you would not be con· tent with a verdict of twice that, then your number is probably too low ll.l: you don't need to be trying that case. 3. There Should Be a Number In a case of probable liability, you should give the jury a number. Most of the time, it should be a number that you can arguably support to the jury that considers every reasonably compensable element. There have been times when I've stood up to make closing argument, was going to
suggest a number, and decided not to. There have been times when I've stood up to make closing argument and was not going to suggest anum· ber, and did. (On some of those occa· sions, I made the right choice.) You must stay flexible, depending on the opening summation by the plaintiff. 4. Plaintiff Has the Last Chance Whatever number you suggest, the plaintiff can rebut. If your number will not withstand critical analysis. For example, if you've not taken into consideration lllI. elements of damage, or if you have not rebutted some element of damage by proof with proof, then your number will not withstand scrutiny. An example illustrates this point. Assume you are defending a probable case of liability. The plaintiff is claiming total disability and lost future wages of $150,000. If at closing, you don't suggest any number for lost future wages, then whatever number you suggest is not going to withstand scrutiny upon a proper rebuttal. It doesn't necessarily mean that you had to suggest a number to the jury during the proof. In other words, it is not mandatory that you call a defense economist. The $150,000 can be attacked other ways, but this must be explained during your close. For example, if the
plaintiff's physicians themselves did not testify that the plaintiff was totally disabled, you could attack the number and argue that there is no basis in the proof, Therefore, you've not considered the plaintiff as totally disabled. If the defense vocational rehabilitation expert has testified that plaintiff is not totally disabled, that would give you some plausible explanation of why you've not considered that in your number. If the $150,000 is not a present value figure, and you can show that to the jury, then you could argue what the present value would be. (In that case, you would have to suggest through evidence what that present value is.) Or, if, in fact, the defense proved that the $150,000 figure was not reason· able or rational, based on the evidence, then you could argue that no consideration should be given to lost wages. 5. Rule of Primacy If the jury hears a defense num· ber for the first time in closing argument without any foundational support for that number, you are in trou· ble. If the jury has no clue until clos· ing of the basis for that number, then that number is going to be subject to much juror scrutiny. This gets back to the ground work that needs to be done in telling the jury why you are defending damages. Furthermore,
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25 ARKANSAS LAWYER SPRING 1995