In major damage cases involving minors or people whose injuries require a conservator or guardian, my practice was to have the appointment made at the time the lawsuit was commenced and to call the guardian as a witness at trial to explain their role. I wanted to be able to reassure the jury that  any verdict awarded would be protected for the injured client’s benefit. Here’s a rough outline of the general points I try to cover on direct:

  1. Qualifications: education and experience and knowledge to do the job right
  2. Role: what a guardianship involves and the duties of the guardian
  3. Appointment: appointed by the court to represent the interests of the client
  4. Duties: Duties of a guardian should the jury render a verdict in favor of the client
  5. Court supervision: all of the money is supervised by the court and required reports.
  6. Money for client: any verdict is limited to be spent for the benefit of the client
  7. Security: The bond and legal restrictions to ensure the money won’t be wasted

In virtually every major damage case, the plaintiff calls an expert to discuss the future cost of care of the injured client. These projections are used by the economist to compute present worth valuation. However, it was also common to be faced with a defense cost of care expert. They would claim that a much smaller amount of money than projected by plaintiff’s expert was required for future care. My standard cross examination usually included these points, but not necessarily in this order:

  1. You have never met or talked with: (a) the client (b) the parents/spouse/children/friends/neighbors (3) the treating doctors
  2. You have never been to his home  or been present during physical therapy or any other treatment
  3. You didn’t get involved in this case until___months after the injury and then only because you were hired by the defense.
  4. You weren’t asked by the family or the treating doctors to become involved in this case or by anyone else other than the defendants
  5. You have never had any personal responsibility for this child at any time before the injury
  6. When this case ends, no matter what the result, you will have no further responsibility.
  7. When you’re through testifying and you walk out the door that’s the end of your involvement or responsibility.
  8. In fact when the case is over and the jurors, attorneys, judge, lawyers and jurors like yourself have gone back to your homes,  it will be the parents who are left with the responsibility of taking care of this child.
  9. It’s true isn’t it, that this case is never over for them because they deal with this hour by hour day by day week by week and year by year?
  10. It’s your testimony that the parents can rely upon your opinions about the future costs and needs of their injured son isn’t that true
  11. Can you understand why the parents view your opinions with a lot of apprehension and suspicion when they are faced with conflicting opinions about the future costs of care
  12. Have you considered, in arriving at your opinions, how the parents might feel about their worry there will be enough money to take care of this child for the rest of his life.
  13. If you’re wrong about the amount of money required for the future care of the child, it will be the parents who have to deal with the crisis because you have no other responsibility once you’ve collected your feet and left.

These are some general suggestions of topics that might be considered in the examination and cross-examination. I think it is a good idea to begin the examination of the defense expert by getting them to agree that there is no doubt in their mind that the client is brain injured or disabled in a way that will require supervision care and expense for treatment for the rest of their life’s.


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Here are some thoughts about subjects relating to juries. I begin with some examples of themes or framing of issues from actual opening statements from my cases. The goal here is to use language which will convey meaning.  Perhaps something here will stimulate your thinking about a case you have.

School liability

In this case a school physical education teacher allowed children to leave the gym and go on a run off of school property and return without supervision. A child was struck by a car and seriously injured.

  • This case is all about a school that gambled with the safety of their students and lost

Guard rail injury

In this case the city had installed a guard rail along a street but did not bury the end. Instead it was left pointing at the road at the same level as the guard rail. The vehicle deviated from the road, hit the end of the guard rail. It went through the vehicle, striking the driver and causing serious injuries.

  • This is a case about a city that left a spear pointing towards the road when it should have been guarding against injuries to drivers

These are some phrases and proverbs that have been used in cases to emphasize a particular issue of liability.

  • What does the phrase: “It’s better to be safe than sorry” mean to you?
  • What does the phrase “If the job is worth doing, it is worth doing right” mean to you?
  • What does the phrase “Penny wise and pound foolish” mean to you?
  • What does the phrase “A chain is only as strong as its weakest link” mean to you?
  • Do you agree with the idea that “an ounce of prevention is worth a pound of cure?”

These are some examples of phrases framed in a way to emphasize that actions merely a mistake but something more serious.

  • The company did this, which he knew was dangerous and knew it would hurt people, but did it anyway.
  • The doctor did this, which he knew was dangerous, but he wanted to practice the surgery because he was still learning
  • the company knew that if the cut cost by cutting back on safety that workers were going to get hurt, but it did it anyway.

Note that all of these phrases are a story of betrayal. When we say “they knew it was dangerous and would hurt people, but they did it anyway, we are telling a story of betrayal. It is betrayal and not mere negligence that motivates jurors to find in favor of the plaintiff.

Here are some quotes from an opening statement in a medical malpractice case involving injuries to a child. They are deliberately framed in strong language to emphasize that this was not an understandable mistake, but a substantial breach of good care for the wrong reasons.

  • This case is about two heart surgeons at the Children’s Hospital here in Seattle that failed in a horrendous way to follow accepted medical care that left a four your old little girl with severe brain damage. And it’s about how neither of the two doctors, nor the hospital they work for, want to accept the financial consequences for their screw up. Instead, they want to dump it onto the poor child’s parents.
  • Now let’s talk a little bit about how the two doctors screwed things up and the life they destroyed in the process.
  • Because of the brain damage Sally will essentially spend the rest of her life in a severely retarded state requiring 24 hours a day care. Not only did the doctors violation of good medical care destroy her life, it destroyed the lives of the entire family

Lastly, we know that the road to bad verdicts is paved with attorneys who relied upon logic to convince the jury. Without a story with an appeal to emotion, the attempt is counterproductive. We can evaluate the fault by having the jurors consider these three questions:

  1. How likely was it that the act or omission would hurt somebody?
  2. How much harm could it have caused?
  3. How much harm could it cause in other similar situations?

To summarize all of this, we know that to appeal to the jury we need to look for the moral imperative: the story of a wrong that needs to be set right. In that process we need to never be satisfied with “what” and to look for the “why” motive is the key to understanding people’s conduct and the motivator for plaintiffs verdict when it involves betrayal. Perhaps something here will be useful in that regard.

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Robert Hirschhorn is a jury consultant our firm has employed in the past. He has suggested useful ideas about jury selection. One of his recommendations was to ask the jury  these questions, particularly where time is limited for jury selection:

  1. Describe yourself in a few words
  2. Tell us several names of people you admire
  3. Name three people you do not admire or respect
  4. If you or a loved one were injured by negligence would you sue  for the injuries?

Written questions for jurors to fill out is often suggested as a helpful device. Hirschhorn has proposed using a brief questionnaire with a limited number of questions using carbon copy attachments to allow immediate distribution. This would facilitate the jury panel  completing the form and promptly distributing it  to the lawyers for jury selection.

He suggests that it is not only important to watch out for and search for the “stealth juror,” that is a juror with an agenda that is deliberately concealed during jury selection, as well as for the “Andy Warhol” juror. That’s a juror who has a concealed ambition for 15 minutes of personal fame by their jury verdict.

He recommends looking for companies that can provide social media searching while the jury selection process is taking place. However, in doing so, one should be cautious about violating local court rules or concepts of ethical conduct as viewed by some judges.

He likes to have the intensity of jury feelings framed on a scale of numbers as for example: “On a scale of 0 to 10, with zero being low, how do you feel about – –?”

He recommends framing issues around generally accepted values which would include some of these:

  • Doing the right thing
  • Guarding the truth
  • Following the law
  • Hard work and perseverance will eventually triumph
  • Honesty will eventually be rewarded
  • Americans always come to the aid of the week and the truthful so justice will win in the end
  • Simple and ordinary working men and women possess a special ability to recognize the truth

He reminds lawyers that a negative statement in a frame registers with the unconscious mind without the negative denial. Saying for example: “I am not a crook.” Registers with the unconscious mind as “I am a crook.” The response should not be a denial of the original statement. For example, instead of denying a claim that President Obama was a Muslim, the response should be an affirmative:  “President Obama is a Christian.” In addition, he notes that reward is a less appealing claim than avoiding loss. Framing and injury in terms of loss rather than in terms of reward for justice is more appealing.

His observation is that generally we should beware of people who have had the same injury experience as our client. They often have learned how to cope with the problem or found that the problem got better over time or resent the fact your client may be paid when they weren’t or even that they feel their injury is a lot worse than your clients.

He correctly observes that a lawyer is fully prepared for trial if they can sell someone what their case is about in one minute.

These are all suggestions worth considering.

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