Counsel should not state an opinion as to the specific dollar value of a case where damages are unliquidated.45 In that vein, counsel should not refer to experts’ fees and suggest that the jury consider the value of time spent in different ways analyzing the case.46 It is also improper to suggest to the jury that it determine damages for pain and suffering by setting a fixed amount per hour or per day and then multiplying that amount by the number of days of the plaintiff’s expected life.47 However, in a personal injury case where the plaintiff’s lawyer asked the jury “How do you measure pain and suffering in terms of monetary amounts? It is very difficult. It is not an easy thing to do. $25,000.00? $30,000.00 for her problems? No one knows what is considered reasonable,” such comments were deemed to be not objectionable as they were more in the nature of a “casual slip or rhetorical question rather than an attempt to submit to the jury a mathematical formula for the computation of pain and suffering.”48
In addressing damages, it is improper to refer to money made by millionaires or high-salaried individuals when such references are not properly derived from any matter in evidence, are not matters of common knowledge and are irrelevant to the position of the plaintiff.49 It is also improper to refer to a verdict as “taking money out of the defendant’s pocket.”50
As the duty of care owed by professionals is determined by the standards of the relevant profession, it is improper to ask jurors to apply their common experiences in determining the standard of care applicable to a given profession.51
45. Hugg v. Torres, C.A. No. 90C-SE-12, slip op. at 4, Steele, J. (Del. Super. May 21, 1993) (ORDER), rev’d mem., 637 A.2d. 827 (Del. 1993); Alexander v. Sanford School, Inc., C.A. No. 81C-AU-21, slip op. at 7-10, Poppiti, J. (Del. Super. May 23, 1984), aff’d mem., 494 A.2d 167 (Del. 1984).
46. Kocher v. Capodanno, C.A. No. 85C-MY-26, slip op. at 2, Balick, J. (Del. Super. Aug. 31, 1990).
47. Henne v. Balick, 146 A.2d 394, 398 (Del. 1958).
48. Aleardi v. Tiberi, 269 A.2d 404, 405 (Del. 1970).
49. McNally v. Eckman, 466 A.2d 363, 374 (Del. 1983).
50. Todd v. Tigani, C.A. No. 88C-NO-160, slip op. at 15-16, Herlihy, J. (Del. Super. Nov. 15, 1990).
51. Shively v. Klein, 551 A.2d 41, 44 (Del. 1988).
© 2010 David L. Finger