Elimination of the Ad Damnum Clause: Arguing an Amount to the Jury

By Ralph F. Holmes

In a product liability trial last spring, opposing counsel contended that, in closing argument, we could not ask the jury to return a verdict in a specific amount. He argued that the legislature's prohibition of the writ of summons ad damnum clause precludes ad damnum statements during summation. Although rejected by the court, this is an argument that merits careful consideration, as defense counsel are increasingly trying this tactic to deny plaintiffs an important opportunity to persuade the jury in closing argument.

Entitled "Elimination of Ad Damnum Clause," RSA 508:4-c provides:

In any personal action, the declaration or other affirmative pleading shall not specify or allege the amount of damages claimed, but shall, instead, state that the damages claimed are within any minimum or maximum jurisdictional limits of the court to which the pleading is addressed.

When examined in light of the standard rules of statutory construction, this statute cannot be construed to impair in any way a plaintiff's common law right to argue an amount to the jury in closing.

As the New Hampshire Supreme Court has held: "[t]he starting point for determining legislative intent is the language of the statute itself," and "[w]hen the language of the statute is plain and unambiguous, we will construe the statutory language according to its common and approved usage." The language of RSA 508:4-c is plain and unambiguous: writs of summons and other affirmative pleadings shall not allege the total amount of damages claimed in personal injury actions. The statute does not address in any way the permissible content of closing statements. To suggest otherwise is to expand the statute's scope beyond the meaning of its words in violation of well established rules of statutory construction.

Absent an ambiguity in a statute, its legislative history is not to be consulted. Because the language of RSA 508:4-c is plain, its statutory history is of marginal importance. Nonetheless, this history compellingly confirms that the statute is not intended to affect a plaintiff's right to argue an amount to a jury. The only reference in the legislative history to whether the statute is intended to curtail ad damnum statements to a jury is the following:

The bill, as amended, provides that in personal actions the plaintiff shall not specify in his declaration the amount of damages claimed. This "ad damnum clause" or statement of money loss is often misleadingly used and sometimes causes the defendant undue expense in defending actions that unnecessarily exceed insurance limits. The defendant, judge and jury will still be able to have this information.

Thus, the statute's legislative history indicates that the statute is intended to protect defendants from "misleadingly used" (presumably, exaggeratedly high) ad damnum clauses in writs but to still allow the plaintiff to present "information" of "the amount of damages claimed" to "[t]he defendant, judge and jury." As reflected in this passage, the legislature contemplated that the statute would not hinder plaintiffs in sharing of this important "information" with a jury.

In his respected treatise on statutory construction, Professor Singer has unequivocally held that "[s]tatutes in derogation of the common law should be strictly construed." This view is also followed in New Hampshire.

Under long established case law, counsel have had the right to argue a specific damages amount to the jury. This right does not derive from writ ad damnum clauses. As formerly employed in practice, the ad damnum was simply a recitation in the writ of the total amount of damages claimed. Its formulation was an important consideration because it set the maximum amount the plaintiff could recover, resulting in frequent motions to increase writ ad damna, surprisingly often after verdict. Although counsel were able to argue the ad damnum in closing, they could also argue another (presumably lesser) amount if they chose. Over thirty years ago, in Duguay v. Gelinas, the New Hampshire Supreme Court noted that New Hampshire law "allow[s] counsel to argue to the jury the lump sum he seeks to recover or the ad damnum of the writ." Thus, the common law of this state allows counsel to argue an amount other than the ad damnum amount to the jury, and the statutory elimination of the ad damnum clause from writs cannot be read to curtail this important plaintiffs' common law right.

1. Cyr v. Case, No. C-89-3216 (Hillsborough Cnty. Super. Ct. March 1993).

2. New Hampshire Revised Statutes Annotated [hereafter "RSA"] 508:4-c.

3. Private Truck Council of Am. v. State, 128 N.H. 466, 474 (1986) (citing State Employees' Assn. of N.H. v. Board of Trustees, 120 N.H. 272, 273 (1980)).

4. Concord Steam Corp. v. City of Concord, 128 N.H. 724, 729 (1986) (citing Dover Prof. Fire Officers Assn. v. City of Dover, 124 N.H. 165, 169 (1983)).

5. Chroniak v. Golden Inv. Corp., 133 N.H. 346, 351 (1990) (citing Appeal of Cremin, 131 N.H. 480, 483 (1989)).

6. New Hampshire General Court, Journal of the House of Representatives, at 574 (1985) (emphasis added).

7. Id.

8. Norman Singer, 3 Statutes and Statutory Construction § 58.03, at 75 (1992).

9. Hamel Real Estate, Inc. v. Shepherd, 121 N.H. 733, 736 (1981).

10. See, e.g., Jackson v. Leu-Pierre, 112 N.H. 407 (1972); Duguay v. Gelinas, 104 N.H. 182 (1962); Williams v. Williams, 87 N.H. 430 (1935); Sanders v. Railroad, 77 N.H. 381 (1914).

11. See, e.g., Jackson v. Leu-Pierre, 112 N.H. 407 (1972) (ad damnum increased during discovery and trial).

12. See Williams v. Williams, 87 N.H. 430, 433 (1935); Sanders v. Railroad, 77 N.H. 381, 382-83 (1914).

13. Duguay v. Gelinas, 104 N.H. 182, 187 (1962)

14. Id.

15. Id