When you are faced with handling a case with major personal injuries, a different approach from a less serious damage case should be considered. Among the many issues involved in major damage cases, here are a few basic rules I followed. Not every lawyer uses the same approach, but here are the fundamentals that worked well for me.
My first rule in major damage cases was to apply Shakespeare’s advice:
“To gild refined gold, to paint the lily, to throw perfume on the violet…is wasteful and ridiculous excess.”
My experience was that the most successful approach in these cases was providing enough information to the jury so they can picture the full situation but not a complete review of the injuries. There are a number of ways this can be done, depending upon the availability of quality witnesses, the nature of the injuries and the circumstances. Here are some I found effective:
1. An impressive treating doctor or a credible cost of care expert can provide compelling background information, but I don’t think should be the primary fact witness about the impact of injuries
2. A carefully edited video of the steps required in the care of the patient can be helpful with supporting testimony of care givers, but only if brief and well done. My day in life videos were never longer than 10 minutes. I would not use the historical day in life video that virtually covered morning to night patent care. What you should want is enough information to make the juror understand the nature of injury and what a burden the full picture must be and let them imagine the true reality.
3. An animation can be helpful for specific facts in the care or injury, but must be very brief and simple
4. Illustrations, either photos or drawings, can be more impressive than video or illustrations especially when very uncomplicated illustrating only one fact. I have followed a procedure of showing a photo to a witness and asked what is illustrated in a step-by-step examination.
5. Nonfamily supportive care givers are seen generally as more objective and credible than family members. They can provide both information & paint family care givers as a caring “hero.” I have used different care givers to describe different aspects of care they are involved with to break up the needed narration.
6. Articulate family members are a necessity, but only brief with a self-deprecating message that they don’t see their care as a burden as they love the patient and have hope that perhaps the doctors are wrong and there may be improvement. These are key witnesses who need to testify without crying or self-pity demeanor. As you know, if you watch the evening news interview of someone who has suffered a loss, who cries through the interview, you feel uncomfortable, you can’t understand what they are saying and there is a general adverse reaction. People who are obviously in distress over a loss, but who describe the situation, not from their standpoint of self-pity, but the victim’s, are favorably seen by viewers. Testimony which is seen as a brave positive attitude produces a supportive reaction. I’m not suggestion rehearsal. I’m suggesting carefully determining what to ask, how long to take presenting this witness and reviewing the testimony with the witness until you get the right formula of what questions work.
7. I understand that a qualified expert can describe the needed care being given and explain the circumstances as well as the full damage picture. But, that is less interesting, or compelling and often boring compared to a better approach. That approach is often a variety of people covering different aspects of care which is more interesting and easier to digest as a juror. I am not a believer in presenting major damage cases primarily through an expert. Just as the garage mechanic in a product cases can make a more compelling witness than the expert engineer, lay people who are able to paint the picture of what this injury means as a practical matter can make great damage witnesses.
8. Lastly, conducting one or more focus studies regarding these ideas and other approaches to damages can be invaluable. That includes video, illustrations or exhibit evidence you might use; video clips of witnesses you might call and a general reaction to the entire damage picture.