California Civil Jury Instructions (CACI)
3925. Arguments of Counsel Not Evidence of Damages
The arguments of the attorneys are not evidence of damages. Your award must be based on your reasoned judgment applied to the testimony of the witnesses and the other evidence that has been admitted during trial.
Directions for Use
If a pleading is admitted into evidence, the following may be added: "The amount of damages that [name of plaintiff] has claimed in [his/her] written pleadings is not evidence of [name of plaintiff]'s damages."
Sources and Authority
"[T]he trial court can and should instruct the jury that the argument of counsel as to the amount of damages claimed by the plaintiff is not evidence and that its duty is only to award such damages as will reasonably compensate the plaintiff for his pain and suffering." (Beagle v. Vasold (1966) 65 Cal.2d 166, 180-181 [53 Cal.Rptr. 129, 417 P.2d 673], internal citation omitted.)
Courts have held that "attempts to suggest matters of an evidentiary nature to a jury other than by the legitimate introduction into evidence is misconduct whether by questions on cross-examination, argument or other means." (Smith v. Covell (1980) 100 Cal.App.3d 947, 960 [161 Cal.Rptr. 377].)
6 Witkin, Summary of California Law (9th ed. 1988) Torts, § 1413
4 Levy et al., California Torts, Ch. 51, Pain and Suffering, §§ 51.50-51.51 (Matthew Bender)
California Tort Damages (Cont.Ed.Bar 1988) Bodily Injury, § 1.74
15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages (Matthew Bender)
(New September 2003)