The per diem argument asks the jury to award a specific dollar amount for each day, hour, or unit of time that the plaintiff has experienced and will continue to experience pain and suffering. It is a closing argument technique used to translate an abstract concept into a concrete number. Senate Bill 68 (signed April 21, 2025) significantly restricted how this technique can be used. Under SB 68, counsel for any party may argue the worth or monetary value of noneconomic damages only after the close of evidence, and such argument must be rationally related to the evidence of noneconomic damages and cannot make reference to objects or values having no rational connection to the facts proved by the evidence. This anti-anchoring provision is designed to prevent plaintiffs from suggesting inflated damage amounts during opening statements or earlier in the trial to anchor juror expectations. The per diem technique remains available as a closing argument tool, but it is now subject to the statutory requirement of a rational connection to evidence. The anti-anchoring provision applies retroactively to all pending and future cases.
30.1. Is a plaintiff’s attorney required to disclose the per diem formula to the defense before closing argument in Georgia?
Georgia does not impose a blanket requirement to disclose the per diem formula before closing argument. However, some judges may require advance notice of specific argumentative techniques as part of pre-trial orders. Defense counsel who anticipate a per diem argument may raise the issue in motions in limine to establish ground rules for how the argument can be presented. The absence of a formal disclosure requirement does not prevent the court from imposing case-specific limitations.
30.2. How do Georgia courts respond to defense objections that a per diem argument inflames the jury?
Georgia courts evaluate per diem arguments on a case-by-case basis. If the suggested per diem amount is reasonable in light of the evidence, courts generally permit the argument. If the amount is grossly disproportionate to the evidence or calculated to inflame, the court may sustain an objection or instruct the jury to disregard the specific number. The court balances the plaintiff’s right to argue damages against the risk of prejudice.
30.3. Can a defendant use a counter-per diem argument to suggest a lower value for pain and suffering in Georgia?
Yes, the defendant can use the same per diem technique in reverse to argue that a lower daily amount is more appropriate. This counter-argument puts a concrete alternative before the jury and prevents the plaintiff’s suggested number from standing unchallenged. Defense attorneys may propose a significantly lower per diem figure to anchor the jury’s deliberation at a lower starting point. For example, if the plaintiff argues $200 per day for 30 years of remaining life ($2,190,000), the defense might counter with $25 per day for 10 years of expected symptom duration ($91,250), grounding the lower figure in medical testimony about the likely resolution timeline of the plaintiff’s condition.
30.4. How does a per diem argument interact with the requirement that damages not be speculative in Georgia?
The per diem argument is treated as an argumentative technique rather than evidence, so it does not need to meet the evidentiary standard against speculation. The underlying damages claim must still be supported by evidence, but the method of arguing the value is within the attorney’s discretion. Courts distinguish between speculative evidence, which is inadmissible, and speculative argument, which is permissible within reasonable bounds.
30.5. What time units are typically used in Georgia per diem arguments, and does the choice of unit affect admissibility?
Attorneys typically use daily, hourly, or per-minute rates depending on which produces the most compelling number for the specific case. A daily rate may be used for mild chronic pain, while an hourly rate might be used for severe intermittent pain. The choice of unit does not affect admissibility, but using very small units like per-minute rates to inflate the total can draw objections and judicial skepticism.
30.6. How do Georgia courts treat per diem arguments in cases involving intermittent rather than constant pain?
When pain is intermittent, the per diem argument must be adjusted to reflect the actual frequency and duration of pain episodes rather than assuming continuous suffering. Attorneys may calculate the total number of days or hours of pain based on medical evidence and apply the per diem rate only to those periods. Overstating the duration of intermittent pain undermines the argument’s credibility.
30.7. Is a per diem argument permissible for future pain and suffering as well as past suffering in Georgia?
Yes, per diem arguments can be applied to both past and projected future suffering. For future suffering, the attorney multiplies the daily rate by the plaintiff’s remaining life expectancy or the expected duration of the condition. The future component typically produces the larger number, making it the most impactful part of the per diem argument in cases involving permanent conditions.
30.8. How does the Georgia appellate courts’ treatment of per diem arguments compare to other jurisdictions, and what is the practical takeaway for trial counsel?
Georgia’s treatment is generally permissive compared to jurisdictions that prohibit per diem arguments entirely. Georgia allows the technique as a legitimate form of closing argument while giving trial courts discretion to manage its presentation. The practical takeaway is that per diem arguments are available but must be used carefully, with amounts grounded in the evidence and presentation calibrated to avoid alienating the jury or drawing sustained objections.
The per diem argument is one of the most powerful rhetorical tools available to plaintiff’s counsel in Georgia pain and suffering cases. Its effectiveness depends on selecting a credible daily amount, grounding the calculation in medical evidence, and presenting the argument in a manner that helps the jury think concretely about an abstract concept. Under SB 68’s anti-anchoring provision, a plaintiff’s attorney who states during opening argument “pain and suffering is worth $500 per day for the rest of my client’s life” would face a sustained objection because the monetary valuation is introduced before the close of evidence. In closing argument, that same calculation is permissible only if rationally related to the evidence: the daily rate must connect to testimony about the frequency, intensity, and duration of the plaintiff’s pain, not to arbitrary figures or comparisons to unrelated values like the cost of a vacation or a luxury car. Defense counsel must be prepared with counter-arguments that provide the jury with an alternative framework for valuation.
Disclaimer: This content is provided for informational and educational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this material. Georgia law is subject to change through new legislation and court decisions. Always consult a qualified Georgia attorney for advice specific to your situation.