T. O. Johnson, Individually and D/B/A Johnson Equipment Company v. Carl Colglazier and Esther Colglazier

JOHN R. BROWN, Circuit Judge

(dissenting) :

Holding, as it correctly does, that conduct of the trial and control of the jury argument in a Federal Court is for the Federal Court and not one in which Erie-loosed or Erie-bound, the Judge must trim his sails depending on the nature of the case then being heard, the Court in sweeping terms for all time condemns the so-called unit-of-time argument with or without placard portrayal. I think the practice is neither as earthshaking as made out, or deserving of this universal condemnation. Worse, it is an abandonment of the very life of Maryland Cas. Co. v. Reid, 5 Cir., 1935, 76 F.2d 30. Authored by one seasoned in the pit followed by the maturing experience of years as a trial Judge firmly in control of all that was occurring and capped now by a third of a century’s experience in the more remote vantage point of reviewing the judicial performance of others, Reid epitomizes the adversary trial in the best tradition of the Anglo-American system. A trial is a search for truth. But it is a search for truth as revealed by the content of the record there made and produced primarily by the advocates who are the professional, partisan spokesmen for the partisans. Though conducted with dignity and decorum, with a sense of the majestic importance of law and in an atmosphere free of external intrusions, it is a colossal error to think that drama and emotion are left out of a trial. The *426contest, although to many on the outside a trivial or slight affair of small significance, is of crucial importance to the litigants. The parties meet there under these controlled surroundings to do battle, with one coming off as victor, the other vanquished, and failing that, it is at least a prelude for a return engagement. The whole system works as an exercise in persuasion — persuasion to action, manifested in the verdict for or against, guilty or not guilty. Here is the advocate’s classic and perhaps highest role whether the object of his importunities is the Judge or, more frequently, a jury. The climax of the trial is almost always the fervent argument of counsel as the awful moment of truth approaches. There are bounds, of course, to what he may say and more particularly the manner in which he says it, but it is a derogation of this famous function to suppose that he must stand there and merely parrot with neither inflection nor gesture what each of the witnesses has said. Although there are some formal limitations upon the extent to which counsel in argument may express his personal opinions, his whole presence there, every word, every gesture, every inflection is to persuade the jury to find the critical issues in his client’s favor. What he is obviously doing is telling the jury what he, as the advocate, desires them to do.

In a case on a general charge, one acting for a plaintiff inescapably talks about the general verdict for the plaintiff, and that leads naturally to the question of how much. Counsel may and ought to discuss dollars. We now hold that he can discuss whole dollars only and make no mention of processes through which the jury might go in trying to fix that ultimate figure.

Any such rigid rule for all cases and for all time is a derogation of the capacity of the Federal District Judge to keep the case in bounds, of the capacity of jurors to use a good deal of common sense in weighing the importunities and blandishments of paid orators, and an undue restriction on the tools of effective advocacy.

The Court outlawing the practice for all cases, diversity and federal, embraces what it calls the “best stated reasons” set forth in Botta5 and summarized in this way: (1) the arguments are not supported by evidence because pain and suffering cannot be measured forensically; (2) the amount of damages for pain must necessarily be left, without mathematical formula, to the sound discretion of the jury as there is no mathematical rule by which the equivalent of such injuries and money can be legally determined; (3) such arguments create an illusion of certainty; (4) a sort of wolf-in-sheep’s clothing, it is a disguised “Golden Rule” argument which forbids the jury being told to put themselves in the place of the parties, although most know they do so anyway.

I think none of these criticisms is well founded. This is demonstrated, I think, by comparing this technique with an argument having the same aim and following essentially the same process which, without use of placards, post cards, blackboard script or the specification of a monetary figure for a unit of time, would be quite permissible. It would go somewhat like this.

Counsel for the plaintiff: “If you have found a verdict for the plaintiff on the Court’s instructions, you must then fix the amount of damages. From the Court’s conference with counsel, we know the Court will charge you that in arriving at damages, you will be guided by this instruction : *What sum of money, if any, if paid now in cash do you find * * * would * * * fairly and reasonably compensate the plaintiff * * * for such injuries and damages as have been directly and proximately caused in the past * * * and will in reasonable probability be * * * caused in the future * * by reason of such injuries * * * and you shall take into account *427such of the following elements of damage * * * as you find are established by a preponderance of the evidence, and none other: First, such physical incapacity as the plaintiff has sustained from the time of the accident to the date of this trial * * * ; Second, such physical incapacity as you find from a preponderance of the evidence the plaintiff will sustain in the future * * * ; Third, such physical pain and mental anguish * * * as you find the plaintiff has sustained from the time of the accident to the date of this trial * * * ; and Fourth, such physical pain and mental anguish the plaintiff will in reasonable probability sustain in the future.* * 6
“You will see that the Court requires you to put your answer in terms of the ‘sum of money’ which ‘if paid now in cash would fairly and reasonably compensate the plaintiff’ for these elements of damage. [Counsel then discusses items First and Second.] This brings us to the Third and Fourth items — physical pain and suffering for two periods of time — from the accident to the date of this trial and from this trial for the future.
“At this point you will observe something very curious. The Judge in his charge will tell you that you must find these things from ‘a preponderance of the evidence.’ Now you did not hear any evidence from any witness as to the sum of money which would compensate the plaintiff for pain and suffering, or what pain is worth or how it is evaluated in money. Indeed, all counsel will tell you that had anyone offered such proof, the Court would have immediately rejected it. Still, you have the duty under the charge to translate your decision in terms of dollars. Your task is to find the sum of dollars that ‘would fairly and reasonably compensate’ the plaintiff for this pain and suffering and in the past and in the future. With no evidence heard on it and no evidence admissible on it, how are you going to do your job ?
“Well, isn’t it a matter of common sense that you have to know two things? First, what is the severity and nature of this pain? And second, what is its duration ? How long has it continued? How long will it last? When it comes to duration, you will have to fix this in your own mind in the same terms in which other ordinary people measure time. You need not, of course, fix it precisely to the day, but is this pain going to be permanent? If so, how long will the plaintiff likely live? You heard evidence on life expectancy and you could fix that number of years in your own thinking. But permanent pain does not occur by years. Pain always occurs in the present, not the past or the future. If you find that the pain will likely be permanent, you are finding that it will occur probably each day of the plaintiff’s life, and certainly during waking hours of consciousness. Well, just how long is this time? It is easy to say eight, or ten, or eleven years. But what is happening in this period? Months are going by to make up the years. Weeks are going by to make up the months. Days are going by to make up the weeks, and hours — waking hours — are going by to make up the days.
“Now the law does not permit me to tell you in terms of cents or dollars my idea of how much each minute, or hour, or day, or week, or month, or year this pain is worth. But you have the task of finding some specific total amount in fixing that lump sum amount. Do you think you could do it ‘fairly and reasonably’ without *428considering the time involved ? Will you not have to take into account the hours and days and weeks and months and years ahead ? Keep this in mind as you write in the lump sum dollar figure.”

In opposing the sweeping condemnation by this Court of the unit-of-time argument, I would not minimize its probable effectiveness. But rules ought to rest on something more than verbalisms. Except for its likely greater effectiveness, each of the criticisms summarized above from Botta may be leveled at the contrary practice. Thus in nearly all jurisdictions it is permissible for counsel to state the lump sum he thinks the jury should allow. Of course that argument is “(1) not supported by evidence.” There is no more, no less, proof for a lump sum than for the unit. Likewise, although there is no “formulae” when the jury may be told what lump sum to allow, the process employed is one in which “(2) * * * the equivalent of such injuries [pain] and money can be legally determined.” Similarly, to suggest a fixed lump sum is not “(3) * * * an illusion of certainty.” It is certainty. And so far as the “Golden Rule” is concerned, there is no more suggestion that jurors put themselves in the plaintiff’s position when reaching a final lump sum by a unit-of-time process than by the outright demand for a like large sum. Of course, under either practice if the forbidden appeal is made, the error will be rebuked, but not because of unit-of-time. In addition to these criticisms, it is also sometimes urged that unit-of-time invades the province of the jury and constitutes nonsworn testimony by the lawyer. Under each practice the purpose of counsel’s argument is to move the jury to a final lump sum figure. It is the province of the jury to fix that figure. But it is the province of counsel to state either what the figure ought to be, or other factors which legitimately would enable the jury to fix a specified or general figure. And to state a unit-of-time breakdown is no more giving testimony than is the permissible naming of the lump sum.

None of these nominal reasons is really a reason against the practice. The real reason, as one discerns from the opinions of the Courts for bidding unit-of-time,7 is the fear that it is too effective, and verdicts will be too large. But as pointed out by the Courts who do allow unit-of-time 8 and as reflected in much of the *429literature,9 if the evil feared is excessive verdicts, then the cure ought to be directed against the product, not the practice.10

That a forensic technique is effective is hardly grounds for prohibiting it. The real hazard arises, of course, from the fact that the standard for damages for pain and suffering is unavoidably vague, But so long as the law tolerates the jury measuring what Botta and all the other anti cases regard as monetarily immeasurable, it is counsel’s right — indeed duty —to employ all honorable appeals to persuasive action,

There are many safeguards and more may be contrived. There is, first, the power and duty of the trial Judge. He has an unlimited arsenal. Thus he may, as plaintiff’s counsel here did on his own, insist that counsel inform Court and *430opposing counsel in advance of argument when unit-of-time is planned. As it is generally used with charts, their form and content should be scrutinized to avoid false factual impressions. The Court in its charge can also make clear that the unit-of-time subsidiary elements are counsel's ideas and not evidence. And to assure effective complete policing, the Court can construct the charge, either general or on special interrogatories, so that each element is separately fixed.11 The Judge can readily tell whether the verdict is measurably infected on this element by an extravagant runaway jury.

Next, there is the good sense of juries.12 This record is dramatic proof that this ancient institution has sufficient strength and intrinsic stability, reetitude and judgment to withstand the blandishments of counsel.13

And finally — but certainly not least— despite the clamor in professional propaganda emanating from the armed camp of the pursued that unless this tortious tool is outlawed the awful day of judgment is at hand, the most effective safeguard is the defending counsel himself. The marvel of our adversary system— the tit for tat, the Big Roland for a Little Oliver — is that to the resourceful advocate there is always an answer.14

This ruling is unrealistically rigid. It demotes trial Judge and trial lawyer.

I therefore dissent.

. Botta v. Brunner, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331.

. The portion from * to ** is the actual charge the Court gave in this case (R. 206-207).

. Illinois: Caley v. Manicke, 1962, 24 Ill. 2d 390, 182 N.E.2d 206; Jensen v. Elgin, Joliet & Eastern Ry. Co., 1962, 24 Ill.2d 383, 182 N.E.2d 211, 94 A.L.R.2d 904;

Kansas: Caylor v. Atchison, Topeka & Santa Fe Ry. Co., 1962, 190 Kan. 261, 374 P.2d 53;

Minnesota: Ahlstrom v. Minneapolis, St. Paul & S.S.M.R. Co., 1955, 244 Minn. 1, 68 N.W.2d 873;

Missouri: Faught v. Washam, Mo., 1959, 329 S.W.2d 588;

North Dalcota: King v. Railway Express Agency, Inc., N.D., 1961, 107 N.W.2d 509;

New Hampshire: Chamberlain v. Palmer Lumber, Inc., 1962, 104 N.H. 221, 183 A. 2d 906; Duguay v. Gelinas, 1962, 104 N.H. 182, 182 A.2d 451; Plume v. Couillard, 1962, 104 N.H. 267, 184 A.2d 452;

New Jersey: Botta v. Brunner, 1958, 26 N.J. 82, 138 A.2d 713, 60 A.L.R.2d 1331; Cross v. Robert E. Lamb, Inc., 1960, 60 N.J.Super. 53, 158 A.2d 359;

South Carolina: Harper v. Bolton, 1962, 239 S.C. 541, 124 S.E.2d 54;

Texas: Cf. West Texas Utilities Co. v. Renner, Tex.Com.App., 1932, 53 S.W.2d 451. Some assert this is contrary to Texas Court of Civil Appeals approach, decisions in note 8, infra;

Virginia: Certified T.V. & Appliance Co. v. Harrington, 1959, 201 Va. 109, 109 S.E.2d 126;

West Virginia: Crum v. Ward, 1961, 146 W.Va. 421, 122 S.E.2d 18; Armstead v. Holbert, 1961, 146 W.Va. 582, 122 S.E.2d 43:

Wisconsin: Affett v. Milwaukee & Suburban Transp. Corp., 1960, 11 Wis.2d 604, 106 N.W.2d 274, 86 A.L.R.2d 227.

. Alabama: McLaney v. Turner, 1958, 267 Ala. 588, 104 So.2d 315;

Arkansas: Vanlandingham v. Gartman, 1963, 236 Ark. 504, 367 S.W.2d 111;

California: Seffert v. Los Angeles Transit Lines, 1961, 56 Cal.2d 498, 15 Cal.Rptr. 161, 364 P.2d 337;

Colorado: Newbury v. Vogel, 1963, 151 Colo. 520, 379 P.2d 811;

*429District of Columbia: Evening Star Newspaper Co. v. Gray, D.C.Mun.Ct.App., 1962, 179 A.2d 377;

Delaware: Bowers v. Pennsylvania R. Co., D.C.Del., 1960, 182 F.Supp. 756, aff’d, 3 Cir., 281 F.2d 953;

Florida: Perdue v. Watson, Fla.App., 1962, 144 So.2d 840; Payne v. Alvarez, Fla.App., 1963, 156 So.2d 659;

Indiana: Evansville City Coach Lines, Inc. v. Atherton, 1962, 133 Ind.App. 304, 179 N.E.2d 293; Southern Indiana Gas & Elec. Co. v. Bone, Ind.App., 1962, 180 N.E.2d 375;

Iowa: Corkery v. Greenberg, 1962, 253, Iowa 846, 114 N.W.2d 327;

Kentucky: Louisville & N. R. Co. v. Mattingly, Ky.App., 1960, 339 S.W.2d 155;

Louisiana: Little v. Hughes, La.App., 1961, 136 So.2d 448;

Maryland: Harper v. Higgs, 1961, 225 Md. 24, 169 A.2d 661; Eastern Shore Pub. Service Co. v. Corbett, 1962, 227 Md. 411, 177 A.2d 701, affirmed on rehearing, 180 A.2d 681; Lebow v. Reichel, 1963, 231 Md. 421, 190 A.2d 642;

Minnesota: Boutang v. Twin City Motor Bus Co., 1956, 248 Minn. 240, 80 N.W.2d 30; Flaherty v. Minneapolis & St. Louis R. Co., 1958, 251 Minn. 345, 87 N.W.2d 633;

Michigan: Yates v. Wenk, 1961, 363 Mich. 311, 109 N.W.2d 828;

Mississippi: Four-County Elec. Power Ass’n v. Clardy, 1954, 221 Miss. 403, 73 So.2d 144, 44 A.L.R.2d 1191; Index Drilling, Inc. v. Williams, 1962, 242 Miss. 775, 137 So.2d 525;

Missouri: Goldstein v. Fendelman, Mo., 1960, 336 S.W.2d 661;

Nevada: Johnson v. Brown, 1959, 75 Nev. 437, 345 P.2d 754;

Ohio: Penn. R.R. Co. v. McKinley, 6 Cir., 1961, 288 F.2d 262; Hall v. Booth, Ohio App., 1961, 178 N.E.2d 619; Boop v. Baltimore & Ohio R. Co., 1963, 118 Ohio App. 171, 193 N.E.2d 714;

Oregon: Hoyle v. Van Horn, 1963, 236 Or. 205, 387 P.2d 985;

Texas: J. D. Wright & Son Truck Line v. Chandler, Tex.Civ.App. writ ref’d n.r.e., 1950, 231 S.W.2d 786; Louisiana & Arkansas R. Co. v. Mullins, Tex.Civ.App. writ ref’d n.r.e., 1959, 326 S.W.2d 263; Texas & N.O.R. v. Flowers, Tex.Civ.App., 1960, 336 S.W.2d 907; Hernandez v. Baucum, Tex.Civ.App., writ ref’d n.r.e., 1961, 344 S.W.2d 498; Chemical Express v. Cole, Tex.Civ.App., writ ref’d n.r.e., 1961, 342 S.W.2d 773;

Utah: Olsen v. Preferred Risk Mut. Ins. Co., 1960, 11 Utah 2d 23, 354 P.2d 575;

Washington: Jones v. Hogan, 1960, 56 Wash.2d 23, 351 P.2d 153.

. Comment, 22 La.L.Rev. 461 (1962); Comment, 60 Mich.L.Rev. 612 (1962); Comment, 14 U.Fla.L.Rev. 189 (1961); Comment, 11 Clev-Mar L.Rev. 495 ( ) ; Comment, 39 N.D.L.Rev. 495 (1963); Comment, 15 U.Miami L.Rev. 85 (1960); Comment, 1960 Wash.U.L.Q. 302; Comment, 1959 Ins.L.J. 699; Comment, 9 N.Y.L.F. 533 (1963); 17 Ark.L.Rev. 94 (1963); 1962 U.Ill.L.F. 269; 36 Temp.L.Q. 98 (1962); 11 Kan.L.Rev. 170 ( ); 41 B.U.L.Rev. 432 (1961); 38 Chi.-Kent L.Rev. 62 ( ); 23 Ohio S.L.J. 573 (1962); 10 Kan.L.Rev. 93 (1961); 45 Marq.L.Rev. 289 (1961); 62 W.Va.L.Rev. 402 (1960); 38 N.C.L.Rev. 289 (1960); 12 Rutgers L.Rev. 522 (1958); 36 Dicta 373 (1959); 33 So. Calif.L.Rev. 214 (1959); 19 Ohio S.L.J. 780 (1958); 43 Minn.L.Rev. 832 (1959); 11 Ala.L.Rev. 207 (1958); 1962 Duke L.J. 334; 1964 Ins.L.J. 264; 49 Ky.L.J. 592 (1961); 64 W.Va.L.Rev. 454 (1962); 4 Ariz.L.Rev. 312 ( ); 14 S.C.L.Q. 442 (1962); 16 Okl.L.Rev. 468 (1963).

. Here the Court expressly rejects the claim that damages were excessive. And properly so, in view of serious permanent injuries to Mr. Colglazier, then 78, and the more serious injuries to his wife, then about 65 with a life expectancy of 15 to 17 years. Hers included compressed fracture of the first lumbar, injury to rib cage, fracture of ankle with considerable fragmentation aggravating pre-existing arthritis and complicated further by preexisting osteoporosis — demineralization of the bones.

. F.R.Civ.P. 49(a) is ideally suited for this. Here a separate blank would have been left for items First, Second, Third, Fourth, see note 6, supra.

. The broad experience in this Circuit with the Louisiana Direct Action Statute, L.R.S. 22:655, proved that juries could, and often would, return verdicts for insurance companies sued as vicarious defendants.

. For the plaintiff Mrs. Esther Colgla-zier, the placard figures for loss of earning capacity, past and future, physical pain, mental anguish, past and future, and future medical expenses totaled $180,-536.67. The jury verdict was for $46,-220.46.

, Such stalwarts as Josh Groce, James E. Clark, Bibb Allen, Paul Brock, long openly and proudly identified with the defense and its organized resistance have not yet thrown in the sponge. See, “The TV * * * Answer To * * * Blackboard Build Up Of Damages,” Alabama Defense Lawyers Journal, April 1965, p. 59.