When we represent people with brain injury it takes a lot of time, factual inquiry and thought in deciding how to present the damage evidence at trial. The most difficult question is what to ask a client who is capable of testifying. In general, my belief was that with major injury cases “less was more” because major injuries generally speak for themselves and don’t need a lot of detail which might make jurors feel you are playing for their sympathy. Once jurors understood the seriousness of the injury they fill in the rest of the damage story themselves. Their story would be real to them and have a greater impact than if you are providing the details. In addition, there is the wisdom from Shakespeare in King John “To gild refined gold, to paint the lily, to throw a perfume on the violet, to smooth the ice, or add another hue unto the rainbow, or with taper-light to seek the beauteous eye of heaven to garnish, is wasteful and ridiculous excess.” You can easily overdue proof of a major injury damage story.
For that reason, it was my practice, in the major injury cases, to not have the client attend trial except during jury selection, sometimes during opening statements and only when they were called to testify. I prepared the jury for their absence in voir dire by telling the truth that it had been decided that it would not be mentally healthy for them to go through the events again during a lengthy trial. I always offered testimony, usually by a family member and treating doctor, to support the concern.
I decided what to ask and how much to ask the client when they testified based upon their ability and the impression they would make on the jury. Each outline was crafted for that client and it was always brief. The exams rarely would involve the injury event at all. My goal was to demonstrate injury. In some cases I might only ask a few questions, given the client’s abilities, with a goal of simply having the jury see and hear them talk. I’ve had clients with serious head injuries on the stand less then ten minutes for direct. The general rule was the defense rarely asked any questions.
I had several cases and jury trials involving injuries to children from Key Pharmacuticals drug Theo-Dur, a Theophylline medication, for resulting seizures and brain damage. None of the clients, old enough to testify, were on the stand long. For example, in 1994 an Oregon jury awarded $44 Million dollars for brain injuries from the use of the drug by a twenty year old client. During an eight week jury trial I had him on the stand for no more than ten minutes. In the example that follows Mike was a young man from Seattle injured from using the same product. He was about fifteen years old when he testified. He had limited mental capacity but lacked full awareness of his mental limitations. He had uncertainty about his exact birth date, or exactly who the president was, but he also wasn’t embarrassed about it because he wasn’t fully aware of his situation. He was involved in activities including school, but in a special needs limited way. His mental limitations had already been explained to the jury during trial when he was not there and before he testified late in the seven or eight week trial in Seattle. Each of these questions were crafted based on a lot of time spent learning the effect of the injuries and what would best illustrate them in a way that would not be embarrassing or harmful to him.
Of course, this isn’t a outline that can or should be used in a general way involving brain injured children. It is only offered as an example of how one examination was crafted for a particular client. It may help illustrate how you can prepare an examination for your brain injured client.
1.HOW FEELING RIGHT NOW?
(1) DON’T BE NERVOUS – JURORS NICE PEOPLE
WHY DON’T YOU TELL US SOMETHING ABOUT YOURSELF MIKE:
a. ARE GOING TO SCHOOL? – Where
b. WHAT YOU LIKE TO DO DURING THE DAY
c. YOUR FAVORITE THINGS YOU LIKE DOING.
d. ARE YOU WORKING? (information?)
- WHAT’S YOUR BIRTH DATE?
- WHO’S THE PRESIDENT OF THE UNITED STATES?
- ARE YOU IN THE BOY SCOUTS? Tell us about it.
- TELL US ABOUT YOUR PIANO LESSONS
- WHO’S YOUR BEST FRIEND
- DO YOU HAVE A GIRL FRIEND MIKE
(1) go on dates
(3) what do
(4) how often
7. DO YOU WANT TO GO TO COLLEGE MIKE? Explain
8. DO YOU GO TO THE MOVIES MIKE?
(1 )FAVORITE MOVIE
9. DO YOU READ BOOKS?
(1) TELL US ABOUT YOUR FAVORITE BOOK
10. READ THE NEWSPAPER?
(1)WHAT PART DO YOU READ FIRST
(2)WHAT PART DO YOU LIKE THE BEST
(1) TELL US ABOUT YOUR FAVORITE TV PROGRAM MIKE
12. TELL US ABOUT RIDING THE BUS TO WORK MIKE –
13. DO YOU LIKE LISTENING TO MUSIC MIKE?
(1) WHICH ONE
14.D O YOU GO TO CHURCH?
(1) TELL US ABOUT WHAT YOU DO THERE
15. WHAT DO YOU DO ON WEEKENDS MIKE?
16. DO YOU HAVE ANY PETS? TELL US ABOUT THEM
- MIKE, WOULD YOU TELL US WHAT’S IT LIKE WHEN YOU WALK INTO A ROOM AND YOU DON’T KNOW THE PEOPLE THERE VERY WELL? (Why)
- WHAT’S WOULD YOU LIKE TO DO IN THE FUTURE? (why?)