Trial Practice: Arguing Amounts for Specific Items of Damages: The Virginia Supreme Court’s Decision in WAKOLE v. BARBER

On March 2, 2012, the Virginia Supreme Court issued a very important decision addressing whether, in a personal injury case, a plaintiff or their attorney  may argue, in closing argument, specific dollar amounts for each element of damages listed in Virginia Model Jury Instruction No. 9.000.  A Virginia statute allowed a plaintiff or their attorney to tell a jury a specific amount that the plaintiff wanted for a total verdict.  Certain elements of the damages already have an amount — for instance, the amount of the medical bills and the amount of the lost earnings – and a plaintiff was allowed to ask for those.  However, other items of damages do not — for example, physical pain, emotional suffering, inconvenience, etc. – and the law was unclear whether the plaintiff could ask for a specific amount for those items.  The Court had already held that a plaintiff could not ask for a specific amount for each day that these intangible damages were experienced, or use any such “fixed basis” to determine an amount.  But could the plaintiff ask for a specific amount for items of damages like physical pain alone? And ask for another specific amount for mental and emotional suffering?  And ask for yet another specific amount for inconvenience?  This was the question the Court considered in the recent case of Wakole v. Barber. [1]

At trial, the judge had permitted plaintiff’s counsel to argue to the jury, in closing argument, specific dollar amounts the plaintiff requested the jury award her for different elements of damages, including non-economic damages like physical pain, past and future mental anguish, and past and future inconvenience.  Counsel for the defense had objected to this type of argument, contending that these arguments invaded the province of the jury and violated Virginia Code § 8.01-379.1.[2] In VTLA’s amicus brief[3], we argued that so long as the amount requested for each element of non-economic damages was supported by the evidence, it was permissible for counsel to inform the jury of the amount plaintiff requested for those items.[4]

The Virginia Supreme Court had previously held in Certified T.V. & Appliance Co, Inc. v. Harrington, 201 Va. 109, 109 S.E.2d 126 (1959), that an attorney was not allowed, during closing argument, to argue damages using a “per diem or other fixed basis” formula for the jury to calculate an appropriate amount of damages.[5] We argued that counsel had not done that here, as there was no specific method of calculation argued to the jury by counsel for the plaintiff.  The Virginia Supreme Court agreed with this argument.  Furthermore, we argued that, just as any party could inform the jury of the total amount sought and the economic damages sought, by logical extension the jury could be informed of amounts sought for non-economic damages.  VTLA argued additionally that the plain language of Virginia Code § 8.01-379.1 does not  prevent or prohibit an attorney’s arguments to the jury addressing specific elements of damages, and does not require or limit a party to arguing only one total amount sought.

The majority of the justices who supported the opinion, however, cautioned attorneys against injecting personal opinions into closing argument.[6] Specifically, the court “caution[ed] against argument that expresses a personal opinion about the justness of a cause, credibility of a witness, or culpability of a civil litigant.”  One justice wrote a dissenting opinion stating that arguments of the kind permitted by the trial judge in this case were not proper.

This is certainly an important decision for all parties to civil litigation and has the potential to be very helpful in explaining damages to juries.


[1] See Wakole v. Barber,  (March 2, 2012), Record No. 102176, at http://www.courts.state.va.us/scndex.htm.
[2] Virginia Code § 8.01-379.1 states: “Notwithstanding any other provision of law, any party in any civil action may inform the jury of the amount of damages sought by the plaintiff in the opening statement or closing argument, or both.  The plaintiff may request an amount which is less than the ad damnum in the Motion for Judgment.”  See statute at http://lis.virginia.gov/cgi-bin/legp604.exe?000+cod+8.01-379.1.
[3] An “amicus brief” or “amicus curiae” brief is a document filed with the court supporting one side’s position, where the person or organization filing the brief is not one of the parties in the case. When an organization or individual has strong views or interest in the issues in a particular case, the organization or individual may petition the court for permission to file an “amicus curiae” brief (a legal document advocating on an issue) in a particular case.  The court may or may not grant this permission; there is no right to file a brief in a particular case if you are not a party to the case.  Normally the court will allow such a brief when the court thinks such additional information or argument may be helpful.  The term “amicus curiae” literally means “friend of the court”; the practice of allowing such briefs to be filed was intended for the court to have as much helpful information as possible on a particular issue under consideration.
[4] While this case was pending before the Virginia Supreme Court, I was fortunate enough to co-author, with attorney Mary Lynn Tate, an amicus brief filed on behalf of the Virginia Trial Lawyers Association (VTLA) supporting the plaintiff’s position on appeal.
[6] See Footnote 1 in the opinion.