We’ve all seen pictures and videos of do-it-yourself (DIY) home renovations gone wrong. From plumbing that seeks to defy the laws of gravity to electrical wiring just waiting to start a fire, we all know the risks of complacency and abundant self-confidence. As the famous saying goes, “the road to hell is paved with good intentions.”
California Civil Jury Instructions give legal practitioners tools to do their own discounting. CACI 3904B provides instructions and tables for the jury to do the work themselves. The jury members are tasked to interpret the written instructions, read tables of statistics, find the right entry on these tables, and do math.
The big pro of applying CACI 3904B: it lowers costs. All things equal, it is an undeniable truth that trial and case costs are reduced when experts are not billing time. That’s always an appealing benefit, especially to the parties who pay the bills.
Attorneys with an eye for DIY, should take a look at the use notes of CACI 3904B. They provide some very important context for what will and will not be allowed. Of particular importance is that attorneys are only allowed to evidence discount rates in one of two ways.
The first and easiest way is by stipulation. If all parties agree that a certain discount rate should be used, that discount rate can be relayed to the jury. From there, the jury is directed to Worksheet and Table A if the damages are a set amount recurring year after year. If the damages vary from year to year, Worksheet and Table B are utilized to determine damages in each year and the discount rates for each period in the future. Table B is used to convert those number value amounts which are then summed.
The second way to present the discount rate is through expert testimony. Although the plaintiff generally bears the burden of proof, when it comes to present value, that burden is placed on the defendant as the reduction is made to their benefit. ( See Wilson v. Gilbert (1972) 25 Cal.App.3d 607, 613-614, no error to refuse instruction on reduction to present value when defendant presented no evidence.). In the instance where no expert testimony is provided on discount rates, decisions not to give any instruction on discounting have been upheld on appeal. After all, requesting a jury to calculate the discount rate without competent evidence would require the application of pure speculation. (Wilson at pp.613-614.)
Furthermore, if counsel elects to go without expert testimony, appellate courts have upheld a trial court decision to prevent table 3904B from being given to the jury. As the Court in Howard v. Global Marine, Inc. (1972) 28 Cal.App.3d 809, stated “we cannot presume that the jurors were unable to make the various computations without the proffered aid of court and counsel after first reaching necessary agreement on the various determinables comprising the formula. Further, defendant’s counsel took a calculated risk in this regard; he produced neither statistician nor economist to aid his cause in this regard. Too, we have found no California cases which hold that use of the present table is indispensable to a proper award of damages for loss of future earning capacity. . . .” (Howard at 816)
If you are looking to increase the decisional complexity of damages, CACI 3904B may be your friend. Instead of picking a single number, now damages, times, and discount rates must all be decided upon. Likewise, if damages are relatively clear and a stipulation can be reached, CACI 3904B may be a cost-effective move to streamline the case.
One place where the tables from CACI 3904B are great – deposition. With a simple understanding of how to apply the tables to the facts at hand, an attorney can catch errors when deposing economic experts. They also help to give attorneys a feel for where the numbers should be when cases get more complex.
Should you need assistance, Juris Economics is here to assist with damages calculations and the application of CACI 3904B. Schedule your free demo today.
