Dealing with a Seriously Impaired Plaintiff at Trial

Last month, we discussed the fact that state laws vary regarding whether and when an impaired plaintiff can be present in the courtroom during the trial of his or her case. We conclude with a discussion on methods for diminishing the emotional impact on the jury of the courtroom presence of such a plaintiff.

The Damages Phase

Despite the varying positions and analyses regarding the exclusion of a plaintiff during the liability phase of trial, it would be difficult for courts to justify the exclusion of a plaintiff during the damages phase of trial. In Morley v. Superior Court of Arizona, 131 Ariz. 85, (1981), the Supreme Court of Arizona explained that “the plaintiff should be allowed to prove damages by the most direct evidence available ' the plaintiff's own physical condition. It is true that the jury may still have a bias against defendant because of the plaintiff's condition, but the bias in the damages phase is grounded on relevant evidence. The right to trial by jury is the right
to a trial by one's peers, and this includes the right to have a person's conduct judged by community standards. The defendant cannot avoid responsibility for his or her conduct by preventing the jury from seeing the results of that conduct and applying community standards to those results. A jury should not decide liability based on the severity of the plaintiff's injury, but certainly the jury should award damages based on the severity of the plaintiff's injuries.” Id. at 88.

When the Plaintiff Is Present: Voir Dire

If a seriously impaired plaintiff is going to be in the courtroom during the liability phase of trial, an important strategic move is to bring the plaintiff's alleged injury to the attention of the prospective jurors during voir dire. Informing potential jurors of the plaintiff's condition and determining if their objectivity will be affected by the plaintiff's appearance can be a key factor in jury selection.

For defense counsel, it is useful to show jurors the plaintiff or a “day in the life” video prior to trial. This will provide a critical understanding of how the jury will view the case. Counsel can assess the jurors' reactions (or the lack thereof) to the plaintiff and his/her condition and plight. Another approach is to simply describe with great detail, emphasis and drama the state of the plaintiff to gauge the reactions of the jurors. Defense counsel utilizing this approach can prepare questions to be asked during voir dire that include information about the plaintiff's condition, thereby assessing the potential jurors' ability to move beyond their sympathy and decide the case impartially.

Accomplishing this can be done by accurately describing the plaintiff's condition, including physical appearance, outward manifestations of any neurological, emotional or other “invisible” injuries, and any behavioral abnormalities that may be exhibited while the plaintiff is in the courtroom. The most effective time to ask potential jurors if they are confident that they can be objective and impartial is while they have a mental picture of the plaintiff at the forefront of their minds. Moreover, providing the details of what to expect and painting a realistic picture of the plaintiff's condition from the outset will help move the jurors past the anticipation of seeing the plaintiff in person, and will bring the focus back to the real facts at issue during the liability phase of trial.

When the Plaintiff Is Present: Opening Statements and Closing Arguments

Once the jury is selected, plaintiff's counsel has the first opportunity to address the jurors by making an opening statement. It is not unusual for plaintiff's counsel to introduce the plaintiff to the jury during the opening statement; when this happens, the jurors have a fresh image of the plaintiff in their minds immediately prior to the defendant's opening statement. In light of this, it is critical for defense counsel during the opening statement to explain to the jury what the case is about, and to emphasize that it is not about emotion, despite the sympathy that the jurors may feel after observing the plaintiff.

Counteracting the personal effect of the plaintiff's appearance by explaining the jury's function in terms of objectivity and following the law can be a helpful tool in moving the jurors' focus off of emotion and toward the defendant's statement of the case. Similarly, the closing argument is the defendant's final opportunity to remind the jury what the case is and is not about, and to reinforce the fact that the jury's role is to be objective and apply the law, despite sympathy for the plaintiff. Nevertheless, in a case with a catastrophically injured plaintiff, defense counsel must address in both opening and closing the issue of damages in a genuine and caring manner. The defense counsel should look for a way to put the damages aspect of the case in perspective and find some positive way to address the plaintiff as well as his/her family.

When the Plaintiff Takes The Stand: To Cross or
Not to Cross

Cross-examining an impaired plaintiff can be a daunting charge. This is especially true when the plaintiff is put up on direct examination for the sole purpose of demonstrating his or her injuries to the jury. The first strategic decision that defense counsel must make is whether or not to cross-examine the plaintiff.

First and foremost, the decision depends upon the level of the plaintiff's impairment; if the plaintiff does not have the capacity to understand the questions asked and provide meaningful responses, then cross-examination may only serve to highlight his or her impairment. When conducting the analysis, it may be helpful for defense counsel to consider whether the plaintiff's anticipated testimony can be brought into evidence through other witnesses; if so, it might be a better strategy to elicit the testimony from other witnesses, in order to avoid the appearance of “beating up” on the plaintiff. If the plaintiff's impairment is so severe that it would not be in the defendant's best interest to conduct cross-examination, focusing on liability rather than damages would allow the defendant to emphasize the stronger aspects of its defense. This would also help keep the jurors focused on their legal duty, rather than their emotions.

If there is any supportive testimony to be obtained through cross-examining the plaintiff, defense counsel must strike a delicate balance between eliciting that information without offending the jury and getting the necessary testimony. If, on direct examination, the plaintiff demonstrates tasks that have been limited due to his or her alleged injury, then on cross-examination, defense counsel can focus on what the plaintiff can do despite his or her alleged injury. Eliciting testimony regarding positive strides in recovery, improvements made over time, and successes in accomplishing tasks can help offset sympathy earned by plaintiff on direct examination, provided that the cross-examination is conducted delicately and without belittling the plaintiff.

Further, if there is any claim that the plaintiff's actions caused or contributed to his or her damages, this may be best elicited through examination. For example, if the plaintiff presents a life care plan and it is known that he or she has failed to comply with certain treatment recommended by the life care planner, highlighting the noncompliance during cross-examination may be an effective tool in arguing that the plaintiff has failed to mitigate his or her damages. Alternatively, this information about noncompliance can be secured through cross-examination of other witnesses, including the expert witnesses on damages, such as an adverse life-care planner.

Conclusion

Because of the differing laws in the several states, knowledge of the jurisdiction's standpoint concerning an impaired plaintiff's presence in the courtroom at various phases of the trial is fundamental in forming a strategy to deal with potential challenges. In states where impaired plaintiffs may be allowed in the courtroom, it is important to present the reality of the plaintiff's condition to prospective jurors at voir dire, to ensure from the outset that the jury will be able to apply the law objectively. The goals are twofold: 1) to assess which jurors would be hostile or simply unable to put aside the understandable sympathy they and others would feel; and 2) to secure “commitments” from other jurors that they will set aside sympathy and decide the case based on the laws and the facts, not on “feelings.”

Defense counsel must also make strategic decisions in terms of cross-examining the plaintiff, depending on the circumstances of the case at hand. This decision will turn on the plaintiff's condition, ability and whether the plaintiff is “innocent” or “with baggage.” In every case, it is essential to remind the jurors of their legal duty to remain objective, despite any emotion they feel toward the plaintiff.

However, the most important thing to keep in mind when dealing with a seriously impaired plaintiff at trial is not just to act sympathetic, but to actually be sympathetic. At each turn, defense counsel should show genuine empathy and compassion. If defense counsel demonstrates genuine concern for the plaintiff, the jury will, hopefully, focus less on taking sides and making decisions based on emotion, and more on being objective and following the law.

Lori G. Cohen, a member of this newsletter's Board of Editors, is a shareholder with the law firm of Greenberg Traurig, LLP. She focuses on litigation and trial work for the pharmaceutical and medical device industries, products liability, and medical malpractice. She has been recognized by the National Law Journal as one of 'The 50 Most Influential Women Lawyers in America.' Sarah L. Goldberg, an associate with the firm, focuses her practice on medical malpractice and medical device liability.

Last month, we discussed the fact that state laws vary regarding whether and when an impaired plaintiff can be present in the courtroom during the trial of his or her case. We conclude with a discussion on methods for diminishing the emotional impact on the jury of the courtroom presence of such a plaintiff.

The Damages Phase

Despite the varying positions and analyses regarding the exclusion of a plaintiff during the liability phase of trial, it would be difficult for courts to justify the exclusion of a plaintiff during the damages phase of trial. In Morley v. Superior Court of Arizona , 131 Ariz. 85, (1981), the Supreme Court of Arizona explained that “the plaintiff should be allowed to prove damages by the most direct evidence available ' the plaintiff's own physical condition. It is true that the jury may still have a bias against defendant because of the plaintiff's condition, but the bias in the damages phase is grounded on relevant evidence. The right to trial by jury is the right
to a trial by one's peers, and this includes the right to have a person's conduct judged by community standards. The defendant cannot avoid responsibility for his or her conduct by preventing the jury from seeing the results of that conduct and applying community standards to those results. A jury should not decide liability based on the severity of the plaintiff's injury, but certainly the jury should award damages based on the severity of the plaintiff's injuries.” Id. at 88.

When the Plaintiff Is Present: Voir Dire

If a seriously impaired plaintiff is going to be in the courtroom during the liability phase of trial, an important strategic move is to bring the plaintiff's alleged injury to the attention of the prospective jurors during voir dire. Informing potential jurors of the plaintiff's condition and determining if their objectivity will be affected by the plaintiff's appearance can be a key factor in jury selection.

For defense counsel, it is useful to show jurors the plaintiff or a “day in the life” video prior to trial. This will provide a critical understanding of how the jury will view the case. Counsel can assess the jurors' reactions (or the lack thereof) to the plaintiff and his/her condition and plight. Another approach is to simply describe with great detail, emphasis and drama the state of the plaintiff to gauge the reactions of the jurors. Defense counsel utilizing this approach can prepare questions to be asked during voir dire that include information about the plaintiff's condition, thereby assessing the potential jurors' ability to move beyond their sympathy and decide the case impartially.

Accomplishing this can be done by accurately describing the plaintiff's condition, including physical appearance, outward manifestations of any neurological, emotional or other “invisible” injuries, and any behavioral abnormalities that may be exhibited while the plaintiff is in the courtroom. The most effective time to ask potential jurors if they are confident that they can be objective and impartial is while they have a mental picture of the plaintiff at the forefront of their minds. Moreover, providing the details of what to expect and painting a realistic picture of the plaintiff's condition from the outset will help move the jurors past the anticipation of seeing the plaintiff in person, and will bring the focus back to the real facts at issue during the liability phase of trial.

When the Plaintiff Is Present: Opening Statements and Closing Arguments

Once the jury is selected, plaintiff's counsel has the first opportunity to address the jurors by making an opening statement. It is not unusual for plaintiff's counsel to introduce the plaintiff to the jury during the opening statement; when this happens, the jurors have a fresh image of the plaintiff in their minds immediately prior to the defendant's opening statement. In light of this, it is critical for defense counsel during the opening statement to explain to the jury what the case is about, and to emphasize that it is not about emotion, despite the sympathy that the jurors may feel after observing the plaintiff.

Counteracting the personal effect of the plaintiff's appearance by explaining the jury's function in terms of objectivity and following the law can be a helpful tool in moving the jurors' focus off of emotion and toward the defendant's statement of the case. Similarly, the closing argument is the defendant's final opportunity to remind the jury what the case is and is not about, and to reinforce the fact that the jury's role is to be objective and apply the law, despite sympathy for the plaintiff. Nevertheless, in a case with a catastrophically injured plaintiff, defense counsel must address in both opening and closing the issue of damages in a genuine and caring manner. The defense counsel should look for a way to put the damages aspect of the case in perspective and find some positive way to address the plaintiff as well as his/her family.

When the Plaintiff Takes The Stand: To Cross or
Not to Cross

Cross-examining an impaired plaintiff can be a daunting charge. This is especially true when the plaintiff is put up on direct examination for the sole purpose of demonstrating his or her injuries to the jury. The first strategic decision that defense counsel must make is whether or not to cross-examine the plaintiff.

First and foremost, the decision depends upon the level of the plaintiff's impairment; if the plaintiff does not have the capacity to understand the questions asked and provide meaningful responses, then cross-examination may only serve to highlight his or her impairment. When conducting the analysis, it may be helpful for defense counsel to consider whether the plaintiff's anticipated testimony can be brought into evidence through other witnesses; if so, it might be a better strategy to elicit the testimony from other witnesses, in order to avoid the appearance of “beating up” on the plaintiff. If the plaintiff's impairment is so severe that it would not be in the defendant's best interest to conduct cross-examination, focusing on liability rather than damages would allow the defendant to emphasize the stronger aspects of its defense. This would also help keep the jurors focused on their legal duty, rather than their emotions.

If there is any supportive testimony to be obtained through cross-examining the plaintiff, defense counsel must strike a delicate balance between eliciting that information without offending the jury and getting the necessary testimony. If, on direct examination, the plaintiff demonstrates tasks that have been limited due to his or her alleged injury, then on cross-examination, defense counsel can focus on what the plaintiff can do despite his or her alleged injury. Eliciting testimony regarding positive strides in recovery, improvements made over time, and successes in accomplishing tasks can help offset sympathy earned by plaintiff on direct examination, provided that the cross-examination is conducted delicately and without belittling the plaintiff.

Further, if there is any claim that the plaintiff's actions caused or contributed to his or her damages, this may be best elicited through examination. For example, if the plaintiff presents a life care plan and it is known that he or she has failed to comply with certain treatment recommended by the life care planner, highlighting the noncompliance during cross-examination may be an effective tool in arguing that the plaintiff has failed to mitigate his or her damages. Alternatively, this information about noncompliance can be secured through cross-examination of other witnesses, including the expert witnesses on damages, such as an adverse life-care planner.

Conclusion

Because of the differing laws in the several states, knowledge of the jurisdiction's standpoint concerning an impaired plaintiff's presence in the courtroom at various phases of the trial is fundamental in forming a strategy to deal with potential challenges. In states where impaired plaintiffs may be allowed in the courtroom, it is important to present the reality of the plaintiff's condition to prospective jurors at voir dire, to ensure from the outset that the jury will be able to apply the law objectively. The goals are twofold: 1) to assess which jurors would be hostile or simply unable to put aside the understandable sympathy they and others would feel; and 2) to secure “commitments” from other jurors that they will set aside sympathy and decide the case based on the laws and the facts, not on “feelings.”

Defense counsel must also make strategic decisions in terms of cross-examining the plaintiff, depending on the circumstances of the case at hand. This decision will turn on the plaintiff's condition, ability and whether the plaintiff is “innocent” or “with baggage.” In every case, it is essential to remind the jurors of their legal duty to remain objective, despite any emotion they feel toward the plaintiff.

However, the most important thing to keep in mind when dealing with a seriously impaired plaintiff at trial is not just to act sympathetic, but to actually be sympathetic. At each turn, defense counsel should show genuine empathy and compassion. If defense counsel demonstrates genuine concern for the plaintiff, the jury will, hopefully, focus less on taking sides and making decisions based on emotion, and more on being objective and following the law.

Lori G. Cohen, a member of this newsletter's Board of Editors, is a shareholder with the law firm of Greenberg Traurig, LLP. She focuses on litigation and trial work for the pharmaceutical and medical device industries, products liability, and medical malpractice. She has been recognized by the National Law Journal as one of 'The 50 Most Influential Women Lawyers in America.' Sarah L. Goldberg, an associate with the firm, focuses her practice on medical malpractice and medical device liability.