2010 car crash: L 4-5 disc protrusion that progressed (no radiculopathy) and post-traumatic headaches. There was a dispute over the need for future surgery and causation.
2012 car crash: Temporary neck strain and mild concussion, no aggravation of pre-existing low back condition or headaches.
Strong parts of the case:
The 20 year old female plaintiff was in pain for five years after the initial crash. Defendant was the drunk driver of a beer and wine delivery truck. Evidence of hit and run and poor citizenship in presence of plaintiff at the ER, which caused emotional distress to plaintiff, thereby making the hit and run, bad conduct, and DUI admissible. We excluded defense expert Bradley Probst (biomechanist) and kept out the property damage photos. We had an orthopedic surgeon who said she will likely need a L 4-5 surgery sometime in the future but couldn’t say when.
Weaker parts of the case:
There was a 26 month gap in care, followed by an 8 month gap, $23,000 in medical expenses, noncompliance issues, second collision 2 years later that was almost a head on and was much more forceful, but amazingly did not cause any aggravation to plaintiff’s symptoms (temporary neck strain.) Defense argued the low back injury was a bulge that pre-existed, that she would not need surgery and there was no radiculopathy.
1. Love your client.
Make your client your friend. Remember there are many kinds of friends and there is no reason your client can’t be a friend. Go to your client’s home and spend time with the client and their family. Go to their job and see what they do and how they were affected. Trust that the intangible feeling of caring will leach out of you during trial. The jury will know it. When you really feel that your friend needs justice or her life will be ruined, trust me, the jury will be convinced you are there for more than a payday.
2. Focus group your case:
Listen, listen, listen, and listen some more. Listen with your ears and eyes. Figure out what your group feels, not just thinks. I learned that what we thought were the strengths of the case were really not that impressive to juries. We learned what they considered important. Most important, we learned not to oversell our strengths and not to over-focus on our weaknesses. (Don’t honor your opponent’s defenses by giving them too much press.) I could tell the defense was aware of the same weaknesses I discovered in the focus group. I have discovered that many in-house defense attorneys are flown around the country to seminars where they are likely taught the very principals I discover in focus groups. I think it is absolutely imperative to use a focus group in most cases (unless they are really generic cases.) There is so much to learn and it’s a great warm-up for trial. Focus groups are a great place to practice before trial. Trial lawyers need to practice and should practice with the actual case they intend to try. Finally, your client should attend and listen to the focus group. At the end the focus group, you should have your client testify and answer questions. You can learn a lot from this exercise. Your client needs to know what is being said about them and their case. Your client needs to practice testifying just like you need to practice presenting the case.
3. Win your case in voir dire:
Boil down the topics that are truly important to talk about. For this case I chose burden of proof and manipulating jurors by emotion. It is so important to look each juror in the eye and spend quality time with them. I strongly recommend you do not approach voir dire as a method of eliminating people. It’s much better if it’s viewed like a dinner party and you want to get to know these people and, yes, maybe even share a laugh or two (probably at your expense and definitely not at theirs.) You need to be the leader. You need to come out of the gate and express your true concerns about the case. (This is a topic in and of itself.) Build common bonds and experiences with them that you can discuss in closing argument. Be authentic. They will know if you are phony. For example, I properly laid the foundation and challenged a juror for cause in this trial because she said she could not honestly follow the burden of proof. The judge, a large, imposing man, asked in a booming voice if she could be fair. Meekly, she replied that she could. I looked at her and laughed at myself and said, here I had challenged and insulted her by claiming in open court that she couldn’t be fair. I told her that I embarrassed her and now she is still on the jury that will determine the fate of my client. I implied that I may have just done something very stupid. “What was I to do?” I asked her. I looked deeply into her eyes and asked for her forgiveness. She gave it to me in a moment I won’t forget and that was just between us. We had a bond. She stayed on the jury, despite the fact I did have plenty of preemptories, and she fully supported the award and afterward she gave me a great big hug. Never, ever underestimate the power of relationship and really of love.
4. Tell it all in opening statement:
Tell the jury about your case and tell the jury about the defense’s case. Make sure your summary of the defense is accurate. Trust and honor the jury and don’t advocate. Tell them the facts in a way that highlights your case while highlighting the folly of the defense. Don’t show contempt or anger. It is okay to sometimes show a little sadness. Trust the jury to understand your story. Don’t tell the jury what to think. No one wants to be told what to do. Tell them what to think about. After all, if it is the jury’s idea the plaintiff has been mistreated, it will be much more powerful that if it’s your idea. I like to think of it like this: if there is 100 pounds of anger in a courtroom and you take it all, there’s nothing left for the jury. Better that we as plaintiff’s counsel take 5 pounds of anger, and leave plenty for the jury.
I hope this inspires folks to take these cases to trial and become your client’s friend. Trials become a lot easier that way.
Ben Wells, EAGLE member, has limited his practice to tort law for the last 25 years. He practices in Arlington, WA and lives in Oso, WA. He is a TLC graduate and enjoys his family and the outdoors.