Massachusetts has modernized its rules governing attorney argument as to specific damage awards at trial – but only in Superior Court. Newly amended M.G.L. chapter 231, section 13B, has opened the door for juries to consider specific requests for damage sums which are sought by an aggrieved or injured plaintiff.
Prior to this amendment, plaintiffs’ counsel in Superior Court civil trials were prohibited from arguing that their clients were entitled to a specific award when it came to intangible damages like those awarded for emotional distress, pain and suffering, the loss of use or function of a body part, or punitive damages. Massachusetts jurors were expected to determine damage amounts, if any, based on their life experiences. This often left juries without guidance as to unfamiliar or esoteric concepts of value without any direct assistance or argument from counsel. Juries were left to determine what damage sums the evidence supports and the law allows given the nature and extent of a breach or injury.
With the recent implementation of the new law all this changed. Now “in a civil action in the Superior Court, parties, through counsel, may suggest a specific monetary amount for damages at trial.” Freed to advocate for their clients as to remedies, plaintiff’s counsel may now provide juries with argument geared at suggesting specific awards for damages in cases involving financial recovery.
As with all argument at trial, there are risks. Attorneys may well suggest damage figures that are far lower than a jury would have ordinarily awarded. Alternatively, a jury might find an advocate’s recommendations exaggerated and artificially high award recommendations may undermine a lawyer’s credibility in the eye of the jury. This may well impact their assessment on the merits of liability. Of course, leaving the damages assessment entirely up to the jury is also a danger in that ordinary jurors considering large money figures might well minimize damage awards based on their personal life experiences, biases against run-away jury awards or preconceived notions association with the personal perceptions or misconceptions of a profit motive by the lawyers.
Massachusetts’ new law also changes the manner in which defendant’s counsel may wish to respond to claims for specific damages. Attorneys defending civil cases in the Superior Court should consider attacking inflated or unrealistic damage suggestions. Of course, a liability defense aimed at preventing a damage assessment altogether will remain a focus in most cases for defense counsel. In most cases, including when liability is clear, defense counsel must be prepared to argue and advocate for their client’s own view on damages, including presenting a rational view on the scope and extent of injury or damage to the plaintiff. For example, Defendants routinely highlight the role of any pre-existing injury or allude to evidence of plaintiff’s failure to mitigate their damages.
As attorneys in Massachusetts wrestle with this new law at the Superior Court level, Bennett & Belfort PC will keep you updated as to trends and developments in this rapidly evolving area of trial practice. Should you have any questions on this or any other employment legislation, please feel free to contact Bennett & Belfort P.C.