AN OPENING STATEMENT OUTLINE IN A CASE WITH A COMPARATIVE NEGLIGENCE ISSUE

     

The most powerful person in the world is the storyteller. The storyteller sets the vision, values and agenda of an entire generation that is to come.” – Steve Jobs

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We have cases where the facts or circumstances involve an issue of contributory negligence. In some cases there has been a judicial finding of our client’s negligence or it might involve a tactical decision of ours to concede some percentage of fault on the part of our client or it is simply a case where the claimed contributory negligence is in dispute. I’m providing an outline of an opening statement in one of my cases where we conceded there had been some amount of negligence on the part of my client, but the comparison would show it was a very small percentage compared to defendant.

The outline was created to be used with PowerPoint slides outlining the language of Washington Pattern Instructions. Even though the language was undisputed it would be wise to ask for court approval before employing them in the opening statement. The outline also included PowerPoint of photos and exhibits which had been pre approved by the court. There was also a chronology outline by PowerPoint.

This is intended as a very basic outline in a relatively simple case. It can be used as a basis for revision into an outline that fits your case.

  OPENING STATEMENT WITH COMPARATIVE NEGLIGENCE ISSUE

A.COMPARATIVE NEGLIGENCE

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1.Want to discuss: (1) Fault claimed by both parties (2) compare fault (3) harm done (4) bills and (5) reasonable and just verdict

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2.One of your jobs is to compare the negligence of Avista to the negligence of Mark Munderloh and determine the percentage each may have contributed to this injury

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DUTIES OWED & CONDUCT INVOLVED  

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(Summary of why lawsuit was brought & theme of case)

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1.The three things defendant did which were negligent & caused injury

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DEFINITIONS [Slide “contributory” & “negligence”]
DUTIES OF CARE OWED & NEGLIGENCE COMPARED  

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[Slide comparison of duties owed]

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(1)RCW 4.22.005 & WPI 41.04 comparative negligence

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(1)   Defendant’s duties & Negligence

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(a)APPLICABLE SAFETY RULES – Why is it important( Slides of WPI)
(b)WHAT DEFENDANT SHOULD HAVE DONE COMPARED TO MARK
(c)WHAT DEFENDANT INSTEAD DID – negligence (negligence slides & exhibits)

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(2)Mark’s duties

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(a)WHAT MARK DID & WHY

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(3)Comparison

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(a)WHY DEFENDANT CLAIMS ARE WITHOUT MERIT
(b)Defendant’s degree of violation of duties of care compared to plaintiff
(c)Plaintiff ___ % at fault at most

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B.DAMAGES

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FAMILY BACKGROUND [Slide with photo, ages & children]

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INJURIES [Slides: diagram of injuries & photos of injuries]

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WHAT IS THE JURORS JOB?

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1.TO DETERMINE DUTIES OWED BY EACH IN COMPARISON
2.TO REMEDY THE HARM THAT CAN BE REMEDIED
3.TO PROVIDE FOR NEEDS NOW REQUIRED
4.TO BALANCE IN DOLLARS FOR HARM DONE

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WHAT DAMAGES SHOULD BE CONSIDERED?

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1.APPRAISAL [Slides of instructions)

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(1)Two time periods: Past & future –
(2)Two kinds of damage: Economic and noneconomic

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    2.   ELEMENTS [Slide listing elements of damages]

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(1)Nature and Extent of injuries
(2)Disability
(3)Disfigurement
(4)Loss of enjoyment of life

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HOW YOU EVALUATE DAMAGE DONE

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1.HOW BAD IS IT?
2.HOW LONG DID IT LAST?
3.HOW MUCH DOES IT INTERFERE WITH LIFE?

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WHAT ARE THE DAMAGES IN THIS CASE?

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    1.  PHYSICAL DAMAGE – Explain cause of harm done

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2.NATURE, EXTENT& DURATION OF HARM DONE [Slide history of care]

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3.HOW BAD IS IT?

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4.HOW LONG WILL IT LAST

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5.HOW DOES IT INTERFERE WITH LIFE

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(1)Interference with movement
(2)Interference with independence
(3)Interference with essential family circle – consortium
PRESENT & FUTURE CONSQUENCES OF INJURIES

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(1)Before situation and now future situation

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COST OF NEEDED FUTURE CARE

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1.LIST OF BILLS [Slide of bill totals to date + future cost of care]

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NEEDED FUTURE CARE

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       (1)  Treatments cause pain

       (2)  Life care plan a minimum

       (3)  Life expectancy

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WHAT THE JURY SHOULD DO

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1.PURPOSE OF THE LAW IS TO BALANCE THE HARM DONE

[Slide: Scale of Justice]

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2.IMPACT OF HARM DONE [Slide of consequences of injury]

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3.APPLICATION TO CASE:

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(1)Slide showing economic loss past and future with blanks for future
(2)Slide showing elements of non economic elements
(3)Slide showing verdict with economic, non-economic & consortium

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4.IT IS UP TO THE JURY TO BALANCE THE HARM IN DOLLARS

[slide showing scales of justice]

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HOW TO ARRIVE AT VERDICT

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1.THE VERDICT AMOUNT SHOULD BE THE DIFFERENCE BETWEEN WHAT SHOULD HAVE BEEN AND WHAT NOW IS SITUATION AFTER HARM.

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2.ANALYSIS OF THE BALANCE OF HARM IN MONEY

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(1)The nature and extent of the injuries. WPI 30.04
(2)Disability
(3)Disfigurement
(4) and Loss of Enjoyment of Life

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3.A FAIR JUST AND REASONABLE VERDICT IN THIS CASE FOR WHAT HAS HAPPENED AND WHAT WILL HAPPEN FOR THE REST OF HIS LIFE IS: $_____________

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Conclusion

An opening statement should be told as a story. To create the story it is useful to have a simple outline to promote the storytelling. Most people are visual and using slides and visual aides will promote keeping the juries interest and make the story understandable. A good opening statement should be brief and understandable. An outline assists us in staying on point and not wasting time with rambling discourse. Practice your opening statement until you feel comfortable giving it.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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