Injury Trials: Tips for Direct Examination

Injury Trials: Tips for Direct Examination

     Direct examination is our opportunity to present our favorable witnesses to the jury.  When we conduct this direct examination we should have more than a superficial understanding of our client’s plight.  In order for us to ask the right questions we need to know the true gravity of harm in which our client endured.  When we can truly empathize with this pain and suffering our understanding will be passed along to the jurors.  Unless you are a phenomenal actor the jurors will be perceptive to your lack of true understanding and empathy for your client’s injuries.  For this reason you need to get into your client’s living room.  You need to know about the activities your client can no longer enjoy.  If your client enjoyed quilting prior to her losing her ability to use her arm then you better understand how passionate your client was about quilting.  Why was it so important to her?  Perhaps nothing made her happier than making these quilts for her grandchildren.  You also need to understand what quilting is.  If you don’t know about the subject matter you are talking about it will immediately become apparent to the jurors and they will distrust you when you try to convince them what a loss this truly is to your client.  So learn about your client’s hobbies.  Meet her grandchildren.  Step into your client’s shoes for a while before you put on your trial. 

     While you are interviewing your potential witnesses be sure to ask your witnesses about potential uses for money.  In other words, ask these witnesses what money can do to make up for your client’s harms and losses.  Given the fact that these witnesses will usually know your client much better than you do they tend to have some insights you will not think of.  Get them talking about these various uses for money.  Then decide which of those could be useful in trial.  Then when these witnesses are on the stand, after you talk to them about the harms and losses they have witnessed your client endure you can ask them about what could be done to alleviate your client’s losses.  If the jurors are going to allow money they will want to have concrete reasons for allowing this money.  Give the jurors as many reasons as possible.  This gives you ammunition in excess of the value of your life care plan which you will also be presenting in direct. 

     If you are thinking of putting a child on the stand be careful.  You can do this but be sure to do it in the right way.  If you do not do this correctly you may earn the resentment of your jurors.  If you put a child on the stand don’t do anything that the jurors might interpret as harmful to the child.  Ernie Teitel advises that if you put a child on the stand don’t have the child talk about his or her losses.  Have the child instead talk about his or her life and the positive things that are happening in the child’s life.  In this way the jurors can see what the deceased father or mother is missing out on.  This allows you to demonstrate a substantial loss without in anyway harming or disturbing the child. 

     Another witness you may want to think about bringing to trial is a pain and grief counselor.  You should discuss your client’s plight with this pain counselor.  This individual can enlighten you to all sorts of losses that your client endures which you haven’t thought of.  This individual can explain the psychological trauma that comes along with this type of injury.  The counselor can explain how the plaintiff will now likely retreat from the world and live in isolation, and how this isolation is the worst harm of all.  Once you understand these harms you can better conduct your direct examination of your client and the other character witnesses.  If you have the budget for it then put your grief and pain counselor on the stand.  Let this counselor explain to the jury the real harms your client endures.  The jurors will appreciate the expertise the counselor brings to the table. 

     You will of course want to put a minimum life care planner on the stand.  Your direct examination of this individual is incredibly important.  Before you put this witness on the stand you should try to reference his or her upcoming testimony in your opening statement.  Express to the jurors that they will want to pay close attention when it comes time for the life care planner’s presentation.  As the plan and what is included or not included in the plan will have a tremendous impact on the plaintiff’s life going forward.  Then when you put your life care planner on the stand have them walk you through all that is in the plan in a slow and deliberate process.  Thus have your planner introduce each item separately.  With respect to each item the life care planner should explain what the item is for, how it works, why your client needs it, how much it costs, and most importantly what will happen if your client doesn’t get the item.  David Ball suggests that you have your planner bring as much equipment to trial as possible.  Have the life care planner make a bit of a show and tell performance out of his direct examination.  In this way you can keep it interesting for the jurors.  Pass any equipment around so that the jurors can hold the items and see for themselves.  Be prepared to spend a significant amount of time on the direct examination of your life care planner. 

     When you do conduct the direct examination of your life care planner be sure to edit down the plan ahead of time.  You need to remove from the plan anything that looks frivolous or unnecessary.  If you don’t the jurors will see these frivolous items in the plan and lose confidence in the plan as a whole.  So with respect to any items of questionable use or benefit you should error on the side of eliminating these from the plan.  As always, refer to the plan as the “minimum life care plan”.  In this way you can ask the jurors to allow enough money to pay for a full and complete plan later.  A plan worth two or three times the value of the “minimum” life care plan. 

     We as trial lawyers sometimes assume that our clients need to be in trial.  David Ball suggests that we start from the presumption that we shouldn’t have our client in trial.  Then from there decide if there is sufficient reason to have your client come to trial.  When you make this determination you will have to think about a couple different things.  The first is generally how does your client appear?  How does your client carry him or herself?  There will be situations in which your client will appear to be a lot better than she actually is.  This will chiefly happen in brain injury cases.  The reason for this is because brain injuries are not readily observable as is a human with an amputated arm for instance.  Moreover, often times individuals who have mild brain injuries still present well under direct and cross-examination.  Thus it is dangerous to have these individuals come to trial as the jurors will assume that she appears to be just fine and thus she is exaggerating or lying altogether about her injuries. 

     If you decide to proceed with the route of not having your plaintiff come to trial you need to explain to the jurors why your client is not present.  Explain to the jurors that her doctors or her family feel that it would not be a good thing to have her come to trial.  That to have her relive the experience would just be too traumatic for your client and would cause her further harm.  Thus you deliberately chose to not have her be present at the trial.  If the judge is inclined to have your client present at trial explain to the judge that your client’s presence has no probative value in and of itself.  Not even an expert could simply look and watch your client and make any type of evaluation as to the level of damages she has endured given her basic appearance.  You can also argue to the judge that your client would suffer more by being present and that the defense has no right to inflict more harm upon her without any legitimate purpose for doing so.    If the plaintiff won’t be testifying at trial then her appearance is probative of nothing and thus her presence should not be required. 

     If you are in a situation where you will need to have your client present in trial then you will need to counsel your client appropriately.  First and always advise your client as to proper attire and conduct.  If your clients smokes cigarettes you need to tell her that she can’t smoke anywhere near the courthouse as jurors will give less money to smokers.  If your client wears expensive jewelry tell her to remove the jewelry as jurors will hesitate to allow money for individuals who already have money.  If our client suffers from brain damage which isn’t readily observable by the jurors you will need to explain to your jurors in advance why your client will appear better than she really is.   Explain in your opening and through your witnesses the true harm of the brain damage.  Explain the isolation that she will endure for the rest of her life.  If you explain all this ahead of time then the jurors will be ready for your client and their expectations will be in harmony with what they then observe when your client does take the stand. 

     For a thorough understanding of this type of material I urge you to read any of the many David Ball publications on trial advocacy.  Much of the information above comes from David Ball’s teachings on plaintiff’s trial advocacy.  Alternatively read anything by Don Keenan, perhaps the best plaintiff’s trial attorney in the country.  Don Keenan shares many of the same thoughts and ideas as David Ball.  These two tour across the country speaking on modern day trial advocacy practice.