Lawsuits for wrongful death, brain injury, and other personal injuries contain an ad damnum, i.e., the dollar amount of damages sought by the plaintiff victim. Unlike some other states, Virginia allows a plaintiff’s lawyer to mention the ad damnum to jurors during trial.
By statute, a plaintiff’s lawyer in state court is entitled to mention the ad damnum (or, alternatively, a lesser amount sought at trial) in both opening statement and closing argument in every case. “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.” Va. Code Ann. §8.01-379.1.
Conspicuously, however, the Virginia Supreme Court has held that statutory right does not extend to mentioning the ad damnum in voir dire, i.e., the examination of prospective jurors in the jury selection process. Mentioning the ad damnum during voir dire rest within the sound discretion of the trial court. Speet v. Bacaj, 237 Va. 290, 293 (1989).
Not surprisingly, circuit courts in Virginia are divided on mentioning the ad damnum during voir dire. Hence, to avoid potential mistrial, a savvy personal injury lawyer needs to determine the prevailing local practice.
Also, a prudent personal injury lawyer must be mindful that the Virginia statutory right does not apply in federal courts in Virginia. Mentioning the ad damnum in even opening statement and/or closing argument is discretionary with a federal judge.
