Category Archives: Opening statement

OPENING STATEMENT ON DAMAGE PORTION OF CASE

 

For a description of this trial see I thought I’d share the short opening statement I made which was limited to the damage portion of the case since my partners had covered liability before I spoke. I don’t offer this as a model, but simply to suggest that one can achieve multimillion dollar verdicts in major injury cases without a lengthy opening statement on damages. What isn’t illustrated are the slides that accompanied this opening and which allowed me to be brief. I haven’t corrected the typos from the transcript so it may read a little rough, but there you are.
THE COURT:  All right.  Everyone please be seated.
Mr. Luvera, you may resume. MR. LUVERA:  Thank you, your Honor.

(Projecting photo of client singing on screen) This is Becky Anderson, and  she is doing what she enjoyed most in life, which was to sing.  She liked country western, and she’s been singing ever since she attended the Baptist Church in Selah,  Washington, when she was a child. (Slide of triangle diagram with photos of each defendant) And you have learned that the parties involved here are Dr. Paugh, who was the surgeon. Dr. Schatz, who was the anesthesiologist. And the corporate company. You will see Becky in the center attached to the ventilator, which goes into her throat, which enables her to breathe. That is assist, I guess, is the right way to say it to Now, this trial is in regard to the money, regarding the  injuries and damages and is focused on the issue of a reasonable and fair verdict.  A verdict based upon reason, which is fair under the evidence and as proffered. (referring to slide) So in the center photograph you will see Becky being suctioned. The nurse, and this happens several times a day, happens very frequently actually, the nurse has to disconnect that tube, put in a suction tube down her throat, which causes a gagging reflex when someone sticks something in your  throat, to clear the accumulated fluid and moisture that gathers from this machine that is putting air in her and that’s suctioning. (referring to slide) They also try to get her up. And  you are going to learn that her greatest fear is that the ventilator connection will come loose in some fashion, and she won’t be able to breathe, and she will choke. And so the there is a — her victories are: she stood  by her bed for a minute or she walked three steps, in terms of her physical therapy.

Now, I’m not going to dwell long on this, but I just wanted to make sure you  understand how these injuries occurred. That is to say what they are. It involves of course the vocal cords. This is a woman who had a noncancerous polyp on her throat that caused hoarseness, and because she loved  singing she wanted to have it removed, and it was going  to be done in this fashion: She was going to go home that same day. Now, you have learned that what happened was the fire that was started when the laser connected to  the oxygen both burned the vocal cords, which is a serious problem, but also went down into the trachea, and then we have the damage into the, actually into the lungs themselves.

(Slide of burden of proof instruction) You know from what the Judge said that our burden of proving what her injuries are and whether we are right or not is that it has to be more probably true than not true.  Now, I want to assure you that we think our evidence is far beyond that, but I just want to say to  you that that is actually our test. Is it more probably   true than not true? If someone says well, I think so but I have some reservations. If it’s more probably true than not true that’s sufficient.

(Showing slide of economic & non-economic damage diagram) There are two kinds of damages I want to talk to you about. There is what the law calls economic losses. Those are the bills. Those are the things you — that you have to pay as a result of this happening to pay doctors and Hospitals and caregivers and so on.  And then there are the noneconomic losses, which are entirely different. That is the — that is what has been done to the quality of life for which, and justice, some remedy has to be given. And in our society it is done in money. It’s crass. But that’s — that’s the law, and that’s what we  do in a civilized society.

(Slide diagram past and future)  And there are two time periods involved here. There is the past, which is a matter of, I think, about a year and eight months. And  then there is the future. Now, the future is kind of interesting. The normal life expectancy is what we work with because of what the law says, it is 27 years. The probability is that in some fashion her life expectancy has been reduced, taken from her, by virtue of what happened to her. Well, that’s significant from a couple  of standpoints. One is, when one’s life is reduced it is pretty — it’s a pretty serious matter. But it also impacts in fairness the amount of future money that has to be provided for her future care, which is why the defendants are interested in talking about reduced life capacity because it impacts the amount of money required, except perhaps God himself knows whether her life expectancy is reduced and precisely to what extent. So the economic damages we are considering here are the past and future expenses time wise, (Showing slide of witnesses) and the witnesses you will hear from are Tony Choppa, Anthony Choppa, who  the evidence will show is one of the single most experienced people in the field of cost of care for injured people. Our office uses him repeatedly because of his qualifications. There is nobody better. The evidence will show and state what Tony Choppa has determined about her cost of care. Dr. DeKay is an economist. I’m going to — I’m going to try to make — get as simple  as I can. I’m not very good at arithmetic. But also I  don’t want to make this complicated, but the economist, because we are — we only have one day in court.   That is one time in court. We can’t come back every two years, and tell you how she is doing and every five years. The  amount of money required forever has to be determined in this case.  It would be unfair if we did not reduce — if it should be reduced for the amount of interest that might be earned until all the money is paid out. I think  I probably made this more complicated than I should, but  we have to reduce the interest, if any, from the amount to make it fair to the defendants, and that’s the role of the economist, and we will see what happens when we go  through that. The other thing you will have an   opportunity to do is to evaluate Mr. Choppa’s life care plan, and because in these life care plans we prepare which covers all contingencies, and you will have the right to determine whether some of the   we had planned for are fair or not fair.   So you will get  a chance to go through that, and we will spend some time on that subject.

(showing a series of slides of months of medical treatments) Now, this is a description of what has occurred from the first when went into the hospital, and was transferred to Harborview, and so on, and what you see there are surgical procedures that require her to go  under general anesthetic for a bronchoscopy in which therapy is done with regard to the burned area because  her vocal cords are gone and she has burned areas.    There are over, more than 70 procedures that have been done. And so here we go. In February you will see the procedures. March of 2012.   April of 2012. May of 2012.  June. July. Now  when we get to August she has moved to Northpointe, which  is a rehabilitation center in Spokane, Washington. I mean, for most of us if you walked in there, I’ve been there. I spent time there. It would be, what we would  call, I think, like a nursing home. It’s that kind of a  facility. But it’s a rehabilitation center and she is there in August. But from time to time she has to be transferred out of the facility to a hospital to have these procedures done in which they are taking a look at her throat or doing something for her.So she continues, this is January of 2013, you will see in April and May, Providence Holy Family she has been transferred to the hospital again.  July of 2013.  August. September. And the important point is that from the day she left her home, and went to this Hospital to have this ten minute procedure, twenty minute procedure done, she has never been back home again. She has spent all of her days in a Hospital or at this rehabilitation center where she is now. Now, to give you, because I’m not going to spend a lot  of time, but to give you an idea of the sorts of things that are going on.

(slide of hospital record) This is from the Harborview record of Exhibit 27, page 280. The diagnosis that was made there was that she had, this is when she — this is back in 2012.  Are you with me?   2012?  She has acute stress  disorder and she has posttraurnatic stress disorder. I think we have all been hearing about that recently. It says, the patient — the patient reports responses  involving fear, helplessness, horror, nightmares, high vigilance, avoidance. She reports having vivid  reconstructive memories of what occurred when she was under anesthesia.   She endorses symptoms she relates to the trauma she sustained during her surgery.   At the  institution she is in now they made similar diagnosis.

(Slide of hosptal record) This is from Exhibit 37, page 19, June 18th of this year.  The diagnosis.  Adjustment — (to the court reporter) Am I going too fast? THE COURT REPORTER:   No.   MR. LUVERA:  Adjustment disorder with mixed anxiety, depressed mood, panic disorder, post stress disorder. And the person, the psychologist doing this report,  inquired, she says on page 20, inquired about the  quantity of dream catchers.   Have you seen the Native American dream catcher? That net?  About the quantity of dream catchers in the client’s room.   Ms. Anderson’s room.  Client reports that she has had recurrent nightmares about her trauma incident as well as dreams of her ex-husband chasing her. Until this point, client had  not disclosed the magnitude of her nightmares.   This   would appear to rule in posttraumatic stress disorder. So let me see what — what we can do.

(Slide listing doctors with photos) There are well over 40 doctors and nurses who have been involved in her care.  I mean, given the very lengthy time, six months or so at Harborview and so on that she’s been in hospitals. There are a lot of them.

(Slide listing past & future economic loss) The bills to date are $2,667,516.44.  Now, if you take those bills, and then you project the future cost of care by Mr. Chappa, and the economist, and so on, when you add those up, the total is $15,279,360. If you take the defendants, because they have a cost of care expert, if you take their number and add the past it ranges between $3.59 million and $5.6 million.   That’s economic loss.   Here are the medications she’s been taking on a fairly regular  basis.  I don’t expect you to put any weight on it.

(Slide listing names of medicines she takes) I just want to give you an idea of how many medicines she  has to take. (Slide listing her injuries) So the injury involves the vocal cords. She will never speak again. Throat and lung burnings, permanent ventilator dependent, dependent upon care of others, and the probable shortening of life.  I looked at notes that I had of what people had said, and what she had said because she communicates by moving her lips. And by writing things down. And her sister  Dorothy Payne, who has devoted her life virtually to take care of her sister since this occurred is able to  understand everything she says by just looking at her  lips. But she couldn’t swallow for a year and a half. She had a feeding tube in, and when they took the tube  out the — she had a problem where it wouldn’t close.    So they had to hook up a colostomy bag because of the gathering fluid.  They couldn’t close the hole. She can  eat now, but she still has this problem of the hole not closing correctly.  She has to be suctioned, which is  pretty traumatic for her, many times a day. She has still the frequent nightmares. She has the sensation and not being able to get your breath.   Not being able to breathe.  She has — she has — and I’m going to demonstrate this to you. She has an alarm system at the hospital for this machine because if the machine fails or if — or if the tube comes out, that she is so fearful that would happen, that’s a panic situation for the  nurses.  So they have to have the alarm on. The problem is the alarm goes off every time she turns the wrong way or they get her up or they play, I shouldn’t say play, they adjust the equipment it’s going off on a regular basis. I want you to listen to that sound just to give you an idea of what that’s like, and she has a very nice roommate, who I don’t think this older lady knows where she is, who plays her television 24 hours a day. And  that’s her life, and that’s where she lives, and that’s the facility she is in. So let’s see if I have got well, I– you know, of this list of things I think that  that you are going to learn that the worst of all of it is being dependent upon others for everything. Everything.  And her great desire to go home.   But she can’t do until she finds a way to get free of the  ventilator, if she possibly could, in order to go back, and to get out of where she is at.   So can you play that  for me, Matt?   Or do I do it?   I will push

MR. LUVERA: Now, there is no sound because there is nothing for you to hear. I just want you to see how the communication works. This is how it works. This is  Dorothy seated right here. You will see the connection  to her neck, which is a hole, and then the device in her neck, which is the machine is connected to.   This is the   device.  The ventilator device.   I told you she is able to eat.  You know, the foods have to be the right foods and she is able to eat. One of the problems she has is she has to have suction when the material in her throat collects. This is like three minutes long so you can get an idea.    This is the area that won’t close that’s on her side. Here you are going to see how she is suctioned. The tube is disconnected.  Now this suction device is inserted down her throat. It always causes her to gag.  That has to be done to clean her up.  Now this is an attempt at physical therapy.  Her great fear is that the tube is going to come out. It’s one of those panic    So Becky has said to her sister Dorothy while she would — she’s always been very up. By the way, she’s — she, Becky, is a very up person. It’s all going to be, I’m going to get out of here. It’s going to be okay. But from time to time she says to her sister maybe this is as good as it gets. But here’s something that  I’d like you to hear. Maybe Matt can help me.

MR. LUVERA:    So that’s just to give you a flavor.     That’s the alarm that we hear.
(slide list of elements of damage)   Now, our evidence will  deal with the elements of damages that involve mental suffering, which is different than physical suffering. Economic loss.    Disability.    And the enjoyment of life. Ad while our testimony and our evidence will deal with the balance between the harm done, and the bills,    what is fair and reasonable to compensate for the loss  that she has sustained in terms of the quality of life and so on, and at the end of the case I’m going to do my best to give you my reasoning, and how you should go about or could go about appraising it, and I want to thank you for your attention.   I appreciate it very much.  If I say anything else it will be an argument, and the   Judge will be upset with me.   Thanks.

DAVID BALL NEW BOOK DAMAGES 3

I am a great admirer of David Ball because he is one of very few people who has taken the effort to spell out the steps and procedures for trying a civil case based upon sound research and experience. Many people have explained procedures and concepts, but few have done so in a “paint by the numbers” style of teaching. His latest edition of Damages 3 is a book every trial lawyer should own, read and put into practice. Here is a very rough and brief summary of David’s outline for opening statement without his refinements and explanations to illustate what I mean.

   OPENING OUTLINE

A. THE PRIMARY RULES THE DEFENDANT VIOLATED   
 

B.THE STORY OF WHAT THE DEFENDANT DID   

 

              (What violation of the safety  rule occurred )  
 

C. WHO WE ARE SUING AND WHY WE ARE SUING 

“We are suing (name) for three reasons. The first reason is…”

D. WHY THE DEFENSES ARE NOT VALID 

E. CAUSATION AND DAMAGES 

(1) Introduction: Explain why you are talking about this: “The verdict form asks how much money you will allow for your verdict.” (P. 149)

(2) Mechanism of harm: Step by step clinically explain how negligence caused harm

 (3) Consequences: For each injury how it impacted client

(4) Undermine defense of causation & damages “We had to determine that the problems were due to the collision & not something else”

       (a ) Explain what was done to determine the real truth

       (b) Explain what the result was 

(4) Treatment: Fixes and helps – what client has gone through

(5) What cannot be fixed or helped

F. THE BEFORE SITUATION

G. WHAT THE JURY CAN DO ABOUT IT

“We will show you what caused ….harms and loses and how much money it will take to fix, help and make for them. By the end of the trial, you will see why the evidence makes this the kind of case in which I will have to come back later and ask for an amount that sounds like a lot of money right now, but which you will later realize is right fair and proper. That amount will be $______________. Thank You

Grab their attention first in opening statement – famous first lines

We know that in this world of headline reporting people draw instant impressions. Human resource people report they spend on average 15 seconds per resume so the opening lines had better be an attention getter. In the first few seconds of every encounter we are instantly evaluated. We are observed from head to toe by demeanor, body language and grooming. Within three seconds impressions are formed about us. When it involves advertising it is the headline that determines whether you keep reading or not. Research shows that four out of five people decide whether they will continue reading based upon the headline of the ad. The same rules apply in the court room. From the moment you are first seen these rules apply. So, when it comes to opening statement the opening is the most critical part of the process. You have the jury’s undivided attention for only a minute or two and what you say then determines how carefully they pay attention from then on. When Carl Bettinger of New Mexico spoke at the WSTLA seminar in Seattle Friday he talked about this and theneed to capture attention early in opening statement. Hegave some examples of first lines in literature. I thought it would be interesting to see what has been used as opening lines in literature. I found that by typing in Google "famous opening lines" a whole laundry list of sources was available. Here is my selection of what I consider attention grabbing and unique opening lines.

"There was a land of cavaliers and cotton fields called the Old South. Here in this pretty world, gallantry took its last bow…Look for it only in books, for it is no more than a dream remembered, a civilization gone with the wind." Gone with the wind

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair. Charles Dickens, A Tale of Two Cities<(1859)

Somewhere in la Mancha, in a place whose name I do not care to remember, a gentleman lived not long ago, one of those who has a lance and ancient shield on a shelf and keeps a skinny nag and a greyhound for racing. Miguel de Cervantes, Don Quixote (1605; trans. Edith Grossman)

He was an old man who fished alone in a skiff in the Gulf Stream and he had gone eighty-four days now without taking a fish. Ernest Hemingway, The Old Man and the Sea (1952)

He was an inch, perhaps two, under six feet, powerfully built, and he advanced straight at you with a slight stoop of the shoulders, head forward, and a fixed from-under stare which made you think of a charging bull. Joseph Conrad, Lord Jim (1900)

When he was nearly thirteen, my brother Jem got his arm badly broken at the elbow.
To Kill a Mockingbird (1960), Harper Lee

Mother died today. Or, maybe, yesterday; I can’t be sure. The telegram from the Home says: Your mother passed away. Funeral tomorrow. Deep sympathy. Which leaves the matter doubtful; it could have been yesterday.The Stranger, The Outsider (1942; trans. Stuart Gilbert), Albert Camus

Once upon a time there were four little Rabbits, and their names were – Flopsy, Mopsy, Cotton-tail, and Peter.The Tale of Peter Rabbit(1902), Beatrix Potter

Mr. and Mrs. Dursley, of number four, Privet Drive, were proud to say that they were perfectly normal, thank you very much. They were the last people you’d expect to be involved in anything strange or mysterious, because they just didn’t hold with such nonsense. Harry Potter and the Philosopher’s Stone or Harry Potter and the Sorcerer’s Stone (1997), J.K. Rowling

Mr Sherlock Holmes, who was usually very late in the mornings, save upon those not infrequent occasions when he stayed up all night, was seated at the breakfast table.The Hound of the Baskervilles (1901-1902), Arthur Conan Doyle

It is this day three hundred and forty-eight years six months and nineteen days that the good people of Paris were awakened by a grand pealing from all the bells in the three districts of the Cite, the Universite, and the Ville.- Victor Hugo, The Hunchback of Notre-Dame

It was a bright cold day in April, and the clocks were striking thirteen. Winston Smith, his chin nuzzled into his breast in an effort to escape the vile wind, slipped quickly through the glass doors of Victory Mansions, though not quickly enough to prevent a swirl of gritty dust from entering along with him. George Orwell, 1984

Who’s there?- William Shakespeare, Hamlet Prince of Denmark

The year 1866 was signalized by a remarkable incident, a mysterious and inexplicable phenomenon, which doubtless no one has yet forgotten.- Jules Verne, Twenty Thousand Leagues Under the Sea

"I was not sorry when my brother died." by Tsitsi Dangarembga

"I write this sitting in the kitchen sink." I Capture the Castle by Dodie Smith: