What drives big trial verdicts? Defense trial lawyer organizations are buying into the theory that if a plaintiff lawyer is able at trial to trigger jurors’ survival instincts, that jury is far more likely to return a big verdict in favor of the plaintiff. If jurors see the defendant’s conduct as an immediate danger to themselves, their families, or their communities, such jurors are likely to view a large verdict as a necessary means to their own self-protection. Defense groups are spending a lot of time and money researching how to combat this phenomenon. One strategy that defense lawyers are being taught to use to keep the jurors’ survival instinct asleep during a trial is to keep the jury’s focus of judgment on the plaintiff rather than on the dangerousness of the defendant’s conduct.
The insurance industry and defense organizations know that decades of tort reform propaganda has resulted in much more skeptical jurors. The goal for the defense at trial is to focus the jurors’ skepticism on the plaintiff. This is particularly so in mild traumatic brain injury cases where the damage to the brain may be very subtle. Defense lawyers are being taught at seminars to attack the plaintiff, her attorney, and her treating physicians. Indeed, some defense lecturers go so far as to recommend against calling defense experts to testify because this simply legitimizes the plaintiff’s claim. Instead, they recommend that the case be defended by suggesting from opening statement to cross-examination and through closing argument that the plaintiff is overreaching and that her attorney has hired a team of “professional witnesses” whose only job is to put big numbers on the board for the plaintiff. This strategy for defending a mild traumatic brain injury case relies heavily on innuendo and smear tactics, and goes something like this:
1. Introduce in voir dire and Opening the theme of overreaching by the plaintiff and her team of “professional witnesses.”
2. Attack the plaintiff’s brain injury expert by suggesting that there is an improper relationship between the doctor and plaintiff’s attorney or at least between the doctor and plaintiff attorneys in general. This is typically accomplished by suggesting that the doctor has a piece of the action or a financial interest in the outcome of the case. The pysiatrist’s own intake forms may provide fertile cross-examination materials for the defense. Such forms may reveal that the patient was referred to the pysiatrist by her attorney; assert a lien against the patient’s settlement or verdict; and/or defer payment of the bill until the litigation is over. Other suggestions of bias will be made by questioning the doctor about the number of times he or she participated as an expert for plaintiffs. And, the expert will be questioned about every presentation he or she ever made to groups of plaintiff lawyers. In Closing Argument, the suggestion will be made that the doctor attends such medical-legal seminars to troll for business from plaintiff lawyers.
3. On cross-examination of the plaintiff’s doctor, the defense lawyer will cover every single normal or negative finding. At an inititial office visit, some pysiatrists put the patient through a battery of as many as 100 tests. If 97 of those test results are normal, the defense will spend as long as it takes to go through each of the 97 tests and results. Each normal CT scan, MRI, and neuropsychological test result will be covered in the same detail.
4. Defense attorneys are also taught that during cross-examination of other damages experts, the goal is to simply point out a few absurd things that indicate overreaching while avoiding any line of questioning that would legitimize the damages. For example, cross-examination of a Life Care Planner might be limited to the fact that the expert includes in her plan the cost of a health club, a maid service, or a swimming pool. The point is not the dollar amount of the services, but rather to be able to scoff at the absurdity of the claim. Likewise, cross-examination of an economist may ignore the economist’s calculations and focus exclusively on inferring that the economist is a professional witness whose only job in the case is to put big numbers on the board.
Plaintiff attorneys are sometimes guilty of aiding the defense in its pursuit of its “trial by innuendo” strategy. Putting on a case loaded with professional experts and light on real people who actually knew the plaintiff before and after her injuries certainly helps keep the jury’s “focus of judgment” on whether the plaintiff is overreaching. Life Care Plans that are chock full of luxury items like new swimming pools also play right into this strategy. Another strategy that may blow up in the face of a plaintiff’s attorney is to make a big production about not having the plaintiff present during her own trial because it would be too stressful for her in light of her brain injury symptoms. Defense lawyers are onto this strategy. This is why they now videotape the deposition of the plaintiff in nearly every traumatic brain injury case. I have an acquaintance who recently served as a juror in a mild traumatic brain injury trial in which the plaintiff was never present during trial. The juror could not understand why the plaintiff did not care enough about her own case to attend her trial, yet she seemed perfectly capable of answering questions for several hours at her deposition, video clips of which were played by the defense. This juror wanted to award the plaintiff zero, but capitulated to pressue from other jurors and agreed to an award that covered the medical bills. Needless to say, this award was a small fraction of what the plaintiff’s attorney asked the jury to award. The “trial by innuendo” strategy worked to perfection for the defense in this case.
So, how does one counteract the “trial by innuendo” strategy and avoid the trap of focusing the jury’s natural skepticism on the plaintiff and her experts? One approach was illustrated beautifully this past summer by trial lawyers Tom Metier and Mike Chaloupka of Coloradao. In a trial in Larimer County, Colorado, Messrs. Metier and Chaloupka obtained an excellent verdict in a mild traumatic brain injury case in which they ignored the so-called common wisdom one so often hears at brain injury seminars. These lawyers did not hire a brain injury expert, but rather had their client’s family doctor testify that he diagnosed a brain injury. They did not present a life care planner or an economist. Indeed, no future medical expense, lost wages or impairment of earnings capacity evidence was presented. Instead, the case was built around the testimony of good lay witnesses (who knew the plaintiff before and after her injury) and the testimony of her treating doctors.
Part II of this blog will discuss the junk science used by the defense brain injury consultants who appear with great frequency in mild traumatic brain injury cases.
Michael Phelan is a Virginia trial attorney who practices with a special focus on traumatic brain injury (TBI) cases, pharmaceutical and medical device claims, product liability cases, and truck accidents. Michael’s peers have consistently recognized him for his excellence as a trial lawyer, and his clients have praised him for his commitment to deep research, his outstanding communication skills, and his sincerity and dedication.