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Dealing with a Seriously Impaired Plaintiff at Trial

By Lori G. Cohen and Sarah L. Goldberg

Few cases inspire more sympathy than those involving a seriously impaired plaintiff. Such cases can be daunting to defense counsel because of the potential for juries to allow sympathy to overshadow their legal duty to consider the facts of each case objectively.

The laws vary among states in terms of whether and when an impaired plaintiff can be present in the courtroom during the trial of his or her case. In some states, plaintiffs' lawyers must establish the right of their clients to be in attendance during trial when defense counsel challenges that right. In other states, defense counsel is not afforded this challenge, as the exclusion of a plaintiff from any phase of trial (absent waiver by the plaintiff) is never permitted. In those situations in which a seriously impaired plaintiff is permitted in the courtroom, certain strategies may be employed throughout the course of the trial in order to minimize the risk of juror sympathy influencing the outcome of a case.

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