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A new Massachusetts damages rule raises challenges

January 28, 2017

Monetary damages come in two buckets. The first includes monetary damages that are quantifiable and cover lost earnings capacity or medical expenses. The second type of damages is non-economic or intangible and covers pain and suffering or loss of companionship.

Previously in Massachusetts, a plaintiff could not ask for a specific dollar figure to compensate for non-economic damages sustained in a serious accident, such as a Boston motor vehicle accident. Juries had no guidance and attorneys had to carefully step around the issue of what might be reasonable during closing arguments.

"Trial Court Bill"

Last summer, that changed when Governor Deval Patrick signed House Bill 4123 that amended jury trial procedure in the Massachusetts superior courts. The law went into effect quietly several months ago, and has resulted in more strategic questions than expected.

A sentence added onto M.G.L. c. 231, §13B reads, "In civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial." This means that attorneys can now offer a jury more guidance with a specific dollar amount for noneconomic damages in personal injury cases. When does an attorney need to disclose what that number is? The law left this question unanswered.

Strategic Considerations

Providing a dollar figure can easily backfire if the amount is too high and a jury finds the amount unreasonable. But it could also function as a cap. The jury may have awarded a higher sum, but instead awards the requested amount. Or an insurance company may want to negotiate a high low agreement and use the plaintiff's number as the highest possible award.

Defense attorneys have argued that fairness requires disclosure prior to closing arguments. They may then argue the requested amount is too high and outside of the ballpark. For example, combining current and future damages into one six-digit number may make it seem like a windfall.

Bringing up the damage figure right away in an opening argument could be another way to limit any surprise elements. Mentioning a damage request in the opening should only be done if there is evidence to support it or credibility with the jury could be lost.

Requesting $800,000 might be reasonable, but it is necessary to lay out a strong case to support the number. The jury must also understand that any figure is only guidance and they can award a high or lower sum. Depending on the facts of a case, they may award a higher amount especially if they believe that the requested amount was fair.

As the Massachusetts superior courts put this new rule into effect, it is important to work with an attorney who is up to date on procedure because it may affect the outcome of your case. While most personal injury cases settle before trial, you can see that even a small rule change can affect legal strategy.

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