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THE STRUGGLE OF BEING A CAREGIVER

Many of us have represented the parents of a brain injured or disabled child, a person whose spouse is paralyzed or a loved one with disabling injuries. While we have a certain medical knowledge about the consequences of the injuries to the injured person injuries are not confined to just the person who was injured. They also involve everyone connected to the circle around the injured person.

That includes caregivers as well as the injured person and other uninjured family members. We have learned how all of the relationships are forever changed and will never be the same again. We also know that the evidence shows the divorce rate is much higher in situations involving injured spouses or injured children. We know it is due to the stress of becoming a caregiver, because the injured person isn’t the same person and because the other members of the family unit suffer when all of the attention is directed at the injured member of the family.

I have talked to juries about the  fact that  the injured person  is changed forever.  In a  case  involving  a brain injured wife  I told the jury what it is like. I’ve said something like this to the jury:

“Helen, at least the Helen  George married, doesn’t exist anymore.  Yes, we see  her  physically  looking about  the same as before the injuries and  she is still alive , but she’s not the Helen  George fell in love with  and  married.  That Helen whose personality ,wit and attraction George fell in love with was destroyed forever  by the  injury inflicted on her brain. Those of us who are married  were attracted  to our spouse  by their  personality  and the essence of who they were.  We married them and  we found out  that they weren’t the perfect people  we thought they were and they learned we weren’t so perfect either. We learned to adjust to our mutual imperfections. Over time we  became  closer  to them  as  we  learned  to  understand  them and our relationship grew.  However, if suddenly and unexpectedly  that  same  person  we  learned to love  is brain injured like Helen, we now have  whole  new  person  we really haven’t  met before  as a spouse.  The profound change  in  our relationship  with that injured person  isn’t just  a change  for us. It is a change for our children,  family members and friends as well. Nothing will ever be the same again. The effect of injuries like this cannot be fully  foreseen  and  continuously  impact  our  lives as well as the life of our injured spouse into the forseeable future. ”

James W. Foley’s poem  drop a pebble in the water  describes  the reality  of what happens  to a family  when  one of them suffers serious and debilitating injuries:

“Drop a pebble in the water: just a splash, and it is gone; But there’s half-a-hundred ripples Circling on and on and on, Spreading, spreading from the center, flowing on out to the sea. And there is no way of telling where the end is going to be.”

It’s our role in representing injured people to be able to reverse roles with everyone in this kind of a tragic setting. We need to be able to see and feel what it is like when someone you love and are responsible for suffers serious injuries.

Peter Rosenberger has written a book Hope for the Caregiver: Encouraging Words to Strengthen Your Spirit. Rosenberger’s wife, Gracie, was seriously injured in a car collision in 1983. She went through dozens of surgeries and ultimately had her legs amputated. The couple have two sons and Rosenberger and his children have been Gracie’s care giver during her life since the collision.

The New York Times interviewed him. He said he only left her at home alone for short periods and never alone overnight. He has some assistance part-time in the home. He is able to work out of his house and has a radio’s show and gives speeches.

When asked why he had written the book he said that: “More than 65 million Americans serve as volunteer caregivers for vulnerable loved ones. If we are not in a healthy place, we risk becoming a Petri dish of resentment.” Rosenberger says  that caregivers should take some breaks – “even if those breaks only come an hour at a time. You help them better if you are healthier, not just physically but fiscally, emotionally and spiritually.”

Rosenberger talks about what he calls the “three I’s” He says these are: (1) loss of independence (2) loss of identity and (3) isolation. He explains that caregivers frequently are so wrapped up in the person they are dealing with that they lose their own identity. For example if you ask a caregiver how they are doing they are likely to say “we” just got home from the hospital. Caregivers often speak in the third person because they have lost their identification. Certainly, caregivers lose significant independence because of the dependence on them by the person they are caring for. If one’s life is largely confined to caring for a person needing around-the-clock care one does not have much of an opportunity to mix with and be with others. That also  creates a sense of isolation and aloneness.

Rosenberger recommends support groups as well as the ” three W’s.”  He says these are wait, water and walk. In times of high stress learn to wait, bite your tongue  drank a glass of water and go for a walk. He recommends taking a moment before responding in a stress situation. Practice breathing slowly until you feel yourself growing calmer. Walking he says also is helpful in removing tension.

While there is no substitute  for spending time  with  your injured client and their families a book like this  can provide  helpful insight in  gaining an understanding  of what it is  the people you represent  are really going through.

DON KEENAN’S THE KEENAN EDGE 2 – A book you should own

Don Keenan has been my friend for 25 years. We are both past presidents of the inner circle of advocates, one of the nations most prestigious plaintiff trial organizations. We have also shared a lot of ideas about plaintiff trial work. I listen to what he has to say. One of the reasons that I have placed on lot of credibility in Don is he has always been on the cutting edge of communication and persuasion. Like me, he has a curiosity about what works and what doesn’t in our profession. In addition, I agree with him about most things relating to plaintiff’s trial work and in particular human decision-making.

Don’s numerous awards, honors, professional accomplishments and significant cases are too numerous to list here. The highlights include the fact he has appeared on every major national news program, received most of the significant awards for professional and community work and has served as an  officer or president of the most significant trial organizations. His record of million-dollar verdicts and settlements stands alone.

His popular blog, the Keenan trial blog: ,http://www.keenantrialblog.com/ is a must read for those of us who are trying to improve our trial skills. Don has now published a second collection of  selected blog publications in: “The Keenan Edge 2.” This book is available at the special price of $63.75  For more information see:  http://www.shop.reptilekeenanball.com/products/the-keenan-edge-2-pre-order.html 

By way of the disclaimer I should point out that Don was kind enough to include a couple of contributions I made to his blog, but I have no financial interest in it. The reason you should be familiar with this book is because it has leading edge information about what works for us doing plaintiffs trial work. It won’t substitute for attending one of the many seminars he and David Ball put on regarding witness preparation, discovery or trial, but it is an excellent collection of  great communication and trial ideas.

As an example, there is a section in the book about something I feel passionate about.  That is my belief it is to prove not just negligence but motive. A trial is a battle of impression and not logic. As Don says in law school you were taught that if you could prove liability causation and damages you won. He writes:

“If you could establish all three, then “shazam!” Like Gomer Pyle, a plaintiff’s verdict would certainly appear.”

Nothing could be farther from reality.  Only uninformed  lawyers  and mediocre judges believe that anymore. Yet that’s what we were taught as law students and what is believed by plaintiff lawyers for too many years. As Don puts it: “every case must have a MOTIVE unless the case surrounding the defense is substantiated by outrageous facts or you have an unlikable defendant.”

Don and I also agree about something that not everyone would join us in agreement about.  We both feel partial settlements shouldbe avoided as much as is possible in all cases.Don’s characterization is: “partial settlements: the self-inflicted wound.” I’m with Don. And we both agree that it doesn’t make a difference even if partial settlement is with just a peripheral defendant. There are too many downsides. An obvious defendant who is not in the case allows the jurors to speculate and assume you already collected money or have not done something right. And allows into many cases  the remaining defendants to point their finger at the empty chair. It opens the door to legal issues that could complicate the trial and your ability to collect the verdict.

Other helpful sections involve: negative attribution, focus group studies and voir dire. There is just enough information to make a point without a lot of extra complicated ideas.

Of course, Don talks about his copyrighted Reptile concepts, but this book is more than simply a rehash or extended discussion of that subject.

I also like the contributions made by other lawyers about their cases and how they handle issues.

We have a lot of ways to spend our money on instructional materials. This one is a good investment. I thought it was a valuable addition to my library, but if  you are unhappy with the book ask Don  for the refund, not me.

THE QUESTION OF “WHY?” IS A WHOLE LOT MORE IMPORTANT THAN “WHAT HAPPENED?”

I have written in this blog on many occasions about  the scientific research that the motive and reasons behind the conduct which caused the injury to your client is far more important than the facts about the negligent conduct. Proving the negligence is not the same thing as going behind the conduct and proving why the conduct took place. The doctor in a hurry is not the same case as the doctor failed to meet the standard of care in doing surgery. The question of why something happened is far more significant than the proof of the negligent actions itself.

Proof of wrong motives and evil intent are what really drive the verdict in a plaintiffs injury case. This is particularly true in malpractice cases. This subject has been discussed in one of my favorite sources of information The Jury Expert. www.thejuryexpert.com. The last publication featured an article “if it feels bad to me, it’s wrong for you: the role of emotions in evaluating harmful acts”  http://www.thejuryexpert.com/2014/08/if-it-feels-bad-to-me-its-wrong-for-you-the-role-of-emotions-in-evaluating-harmful-acts/ Their research and conclusions concur with the concept I advocate. In general, the article points out, there is a remarkable body of evidence which indicates that our minds are divided between reason and emotion, which together shape the way we think and behave. On a rational basis, all else being equal, we tend to favor whatever course of action leads to the greatest amount of benefit in the long run. When emotions are guiding our thinking, we are more likely to utilize a value or moral standard in our thinking and decisions. The two must both be in balance together for decision making.

Studies indicate that when we are judging other people’s conduct we tend to imagine what it would feel like to perform the behavior ourselves. Our reviewing  the conduct as if we were involved produces a reaction.  In some cases, this creates a feeling of aversion which dictates a judgment that the behavior was wrong: “if it feels bad to me to do it, it’s wrong for you to do it.” This then becomes the measuring stick in our minds for evaluating the conduct  of other  people.

This raises questions regarding how attorneys attempt to influence jurors decisions. The normal inclination is to focus attention on the victims injuries and damages. Lawyers have traditionally focused attention upon the innocent victim  or the injured plaintiff in an effort to create empathy. However research indicates that this is not the strongest motivator. The dominant factor in motivating the average juror is focus upon the defendants actions themselves and whether the jurors would feel justified in performing those actions themselves.

Furthermore, focusing upon injury for sympathy is more likely to have a negative affect upon the jurors. They are already programed to believe the message of tort reform and are prepared to guard against “fast talking lawyers” peddling sympathy. Research would indicate that: “in the case presentation process, sympathy and victim –focus  backfires.” On the other hand, focusing upon the defendant’s actions and especially wrong conduct or motives explaining them, creates a story in the jurors minds involving the question of whether they would have  done the same thing. The article says: “Adding in the current study results, there are more reasons to say “no” to the old-style of (plaintiff attorney) presentation (of focusing upon injuries and sympathy).”

There is an understandable reluctance to put the defendant at the center of the story. However, since the key factor is the jurors contemplation of whether they would perform the same behavior themselves, plaintiffs should set the stage for jurors to try on that decision for themselves. If jurors believe they would never have acted as the defendant did, and if that action would feel wrong to them, they’ll be primed to condemn it and to believe that it had compensable consequences. This also stimulates a duty to punish wrongs which most people, conservatives in particular, unconsciously feel.

Furthermore,  there an  added  benefit from focusing upon the defendant that studies show results from  this  approach. When we are aware there has been an injury or accident, people tend to review stories  of conduct looking for reasons why it should not  have happened or that it was  not an accident they would have allowed  happen. We should always start our case with the defendant’s conduct and not the plaintiff’s. If the story starts  with the plaintiff, the jurors immediately  began the questioning process about plaintiff’s actions. When it starts with  the defendant’s  conduct the same process happens which is beneficial to plaintiff.

As the article points out this approach has a “what would you do?” aspect to it which we cannot embrace directly without violating the “Golden rule” prohibition. However,  centering the story on the decision-making and correctness on the part of the defendant serves as an invitation for the jurors to assume that rule mentally. As the article points out: “in addition, in voir dire, attorneys have a legitimate right to ask about relevant attitudes and experiences which inquiries get the jurors started thinking about the actions from their own perspective.”

We need to start our case in voir dire talking about the motives and  wrong doing of the defendant’s conduct. All of our  cases  should have such a theme: “the case of the sleepy truck driver, the case of  doctor in a hurry or  the case of the cell phone collision” but one that focuses on motive and wrongful conduct. The article says: “the bottom line is that as the research on moral judgment and a number of related fields continues to blossom, practical litigators need to keep pace. That might mean that the death of the idea that there is a time honored, tried-and-true way to try cases” by focusing on the plaintiff’s injuries and damages as a motivator for a jury verdictl