I. THE STARTING POINT
In order to maximize the eventual recovery on behalf of a plaintiff, a solid foundation supporting the damages claimed must be built. The construction of this foundation begins at the first interview with the plaintiff.
The following areas should be explored during the first interview:
All current treating physicians, hospitals and other health care providers Complete details concerning plaintiff’s medical history and injuries.
Family medical history in cancer and brain damaged baby cases.
Educational background Employment history Collateral source providers Prior and/or current lawsuits Criminal record MEDICAL RECORDS
Obtain complete hospital records not merely abstracts. The urge to save money must not outweigh the fact that if the plaintiff’s attorney does not have complete hospital records he will be at a distinct disadvantage at trial. Nurses notes, for example, provide crucial information regarding a plaintiff’s day to day condition in the hospital and are indispensable in supporting the plaintiff’s claim for pain and suffering. Such notes must be gone through diligently in order to properly prepare the Bill of Particulars so that the defendant is made aware of the magnitude of the injury claimed. They are also essential for questioning of the plaintiff’s physician at trial and to incorporate into plaintiff’s summation.
All pertinent x-rays, ct scans and mri’s must also be promptly obtained. There is nothing more disheartening than attempting to obtain these years later only to learn that they cannot be located by the hospital.
A well known trial attorney once answered, when asked at what point he began preparing his summation “When I first meet the plaintiff”. The point is the plaintiff’s attorney must always have his eye on the trial and what evidence will be required to maximize his client’s recovery. As another sage said, “Cases prepared to be settled are tried. Cases prepared to be tried are settled”.
Depending on the injuries sustained by the plaintiff, there are various types of documentary evidence which are crucial to presenting the damages at trial.
In an auto accident case photographs of damage to the vehicles is important to show the violent nature of the crash. In a scarring or traumatic amputation case photographs of the plaintiff are essential. In a products liability case photographs of the product which caused the injury are, of course, necessary to explain to the jury the mechanism of injury. The plaintiff’s attorney must use his imagination and constantly ask how can I best convey what has befallen the plaintiff to a jury.
Models of every part of the body are available at a minimum cost and are highly effective in conveying to the jury the debilitory effect of the injury to the plaintiff. These models can be obtained from among others, the Anatomical Chart Company, 8221 Kimball Avenue, Skokie, Illinois, 60076-2956. Phone number 847-674-0211.
The best known medical illustrator of our time was the late Frank H. Netter, M.D. whose medical illustrations are contained in his Atlas of Human Anatomy, Noratis, East Hanover, New Jersey. Relevant illustrations should be blown up for use at trial in conjunction with the testimony of the physician testifying on behalf of plaintiff.
MEDICAL ILLUSTRATIONS OF INJURIES
If the severity of the injury justifies the expense, the plaintiff’s attorney should consider retaining a medical illustrator. Working with the physician who will testify as to the injuries, as well as the medical records and x-rays the illustrator can prepare medical illustrations depicting the injuries sustained which emphatically bring home to the jury the devastation wrought upon the plaintiff.
In a case in which hardware has been utilized to repair fractures, the plaintiff’s attorney should obtain exemplars of the hardware used to show the jury what has been required to be placed in the plaintiff’s body. Photographic reproductions of x-rays should also be made.
BLOW-UPS OF HOSPITAL CHART
Significant pages of the hospital chart, such as the operative report and x-ray reports should be blown-up to be used at trial.
DAY IN THE LIFE VIDEOS
In catastrophic injury cases, day in the life videos are compelling evidence and demonstrate the suffering the plaintiff must endure on a daily basis. The plaintiff’s attorney must work with the videographer to edit these to no more than ten minutes. Obviously the unedited and edited versions must be exchanged with the defendant.
ACCIDENT RECONSTRUCTION ANIMATIONS
Assuming a competent reconstruction and detailed scene and vehicle dimensions survey, a very effective way of presenting your version of an accident scenario is through an animation. For an animation to be effective as well as admissible, it must be based upon a sound factual basis. Infrared cameras can be utilized to perform an accurate scene survey including plotting vehicle crash damage. The reconstructionist must work on the animation together with the animator to lay a proper foundation for admissibility.
III. LEARNING THE MEDICINE
The days in which a plaintiff’s attorney could get up and merely do a collateral attack upon the defendant’s expert physician are long gone. It is essential for the plaintiff’s attorney to have an intimate knowledge of the area of medicine involved. The following are basic textbooks on various areas of medicine:
A. ORTHOPEDICS 1. Campbell’s Operative Orthopedics Mosby-Year Book, Inc.
11830 Westline Industrial Drive St. Louis, MO 63146
Rockwood and Green’s Fractures in Adults Lippincott, Williams & Wilkins 530 Walnut Street Philadelphia, PA 19106 Depalma’s The Management of Fractures and Dislocations, an Atlas W.B. Saunder’s Company West Washington Square Philadelphia, PA 19105
OBSTETRICS Williams Obstetrics McGraw-Hill
Danforth’s Obstetrics and Gynecology Lippincott, Williams & Wilkins C. NEUROLOGY Merritt’s Textbook of Neurology Lippincott, Williams & Wilkins
D. PSYCHIATRY DSM-IV-Diagnostic and Statistical Manual of Mental Disorders American Psychiatric Assoc.
E. OTHER SOURCES 1. The current series published by Appleton & Lang, 800-423-1359 publishes one volume paperback editions in the following areas of medicine:
Medical Diagnosis and Treatment Pediatric Diagnosis and Treatment Gastroenterology Orthopedics Cardiology Vascular Surgery Surgery Surgery Obstetrics and Gynecology Critical Care Emergency Medicine
2. INTERNET Pubmed, a service of the National Institute of Medicine provides access to over eleven million Medline Citations.
Online medical dictionary http://www.cancerweb.ncl.ac/
(iii)Food and Drug Administration – http://www.fda.gov/
THE EXPERT 1. TREATING PHYSICIANS All treating physicians should be contacted in order to determine whether they will testify. It is always preferable to have the treating physician testify as to the plaintiff’s injury. It avoids collateral attack and conversely sets up the collateral attack on the defendant’s hired expert.
2. THE CONSULTANT If the treating physician or physicians refuse to testify, a consultant must be obtained. It is imperative that the plaintiff see the physician more than once. In a significant injury case the plaintiff should be directed to see the consultant on a regular basis.
3. LIFE CARE PLANNERS & ECONOMISTS In catastrophic injury cases it is important to retain a life care planner who will determine the annualized costs of medical treatment required by the plaintiff. An economist will then be retained to project these costs into the future. The economist will also project future lost earnings.
4. VOCATIONAL EXPERT In a significant injury case the plaintiff’s attorney should consider retaining a vocational expert to evaluate the effects of the injuries on the plaintiff’s future vocational capacity, employability and earning capacity.
DIRECT EXAMINATIONS OF PLAINTIFF’S EXPERT PHYSICIAN 1. The great Henry Miller has said “If cross-examination is the art of destruction, then direct is the art of construction. A good direct is a conversation”. When the plaintiff’s physician is on the stand, plaintiff’s counsel should step back and allow the expert to speak to the jury, to educate them. The focus should be on the physician, not the attorney. The questions should be such as to allow the expert to fully explain the area of anatomy involved, the injury, the treatment and the effect of the injury upon the plaintiff’s life.
2. BASIC AREAS OF DIRECT
(a) THE EXPERT’S QUALIFICATIONS Have the expert fully describe his professional background. Never accept a stipulation from the defendant as to the expert’s qualifications. You want the jury to hear the qualifications.
(b) How the physician came to treat the plaintiff. If the physician is a consultant you retained, bring that out on direct. For example, “Pursuant to my request did you on several occasions examine the plaintiff”.
(c) Fee for Testimony Don’t leave this for cross. People expect professionals to be paid. Bring this out and the fact that the physician has had to take time away from his practice to be in Court.
(d) Hospital and Medical Records Go through these in detail with the physician. Don’t be a minimalist. Remember you are not only trying the case for the jury but making a record for the Appellate Division.
(e) Demonstrative Evidence This is where the aforementioned medical illustrations, anatomical models, etc. come into play. Use them to have the physician educate the jury as to the parts of the body involved and the effects of the injuries thereon.
(f) Pain and Suffering The physician must be extensively questioned as to the pain producing nature of the injuries. The nurses notes should also be utilized to confirm the pain suffered by the plaintiff as a result of the injuries.
(g) Proximate Cause and Permanency Don’t forget these two mandatory questions. For Example:
Causation: Have physician assume facts of accident, then:
“I want you to assume the findings in the hospital record and your treatment as you just testified to, the findings in your office records maintained by you in the course of your professional practice and as testified to. Having all that in mind, Doctor, in your opinion, with a reasonable degree of medical certainty, was the accident of (date of accident), the competent producing cause of the injuries you have testified to?”
Permanency “Now, Doctor, I want you to assume all of that which I just asked you about; also — assuming all those facts and also that it’s now some years subsequent to this accident, and based upon your testimony of the treatment you gave to the plaintiff, based on numerous examinations and your office records, Doctor, in your opinion, with a reasonable degree of medical certainty are the conditions, injuries that you have described as being permanent, of a permanent and lasting nature that the plaintiff will suffer from for the rest of his days?”
VI. DIRECT OF THE PLAINTIFF The goal is for the jury to like your plaintiff and for his/her story to sound credible. Recognize and deal with the particular areas of cross during your direct. Take care of the liability issues before discussing the injury. Ask direct questions regarding pain and suffering. Show the jury scars when appropriate but make sure not to overdo it.
VII. CROSS-EXAMINATION OF DEFENDANT’S EXPERT (a) COLLATERAL ATTACK The defendant’s expert will usually be an expert who has testified many times. It is incumbent upon the plaintiff’s attorney to have obtained all available information on the expert. A jury verdict search should be done in which all of the cases in which the expert has testified are obtained. The attorneys in those cases should be contacted in an attempt to obtain transcripts of his prior testimony for use as impeachment.
The following is an example of a basic collateral attack:
Q. Dr., you’re no stranger to the courtroom, are you.
A. That is true.
Q. You have been in the courtroom many times over the years?
Q. You have been coming into Court well over 10 years now, true?
Q. As I understand it, you now testify two to three times a month?
Q. Not including testifying, is it fair to say you examine about 25 plaintiffs a week on behalf of defendant’s law firms?
A. I examine about 25 people a week who are being sent to me by the defense for an evaluation.
Q. Now, these plaintiffs that you examine, such as the plaintiff, you don’t render any treatment to them, correct?
Q. You examine them, and give defense attorneys a report?
Q. Is it correct for these reports you charge $900.00?
Q. Now, Doctor, is it fair to say you earn approximately $10,000.00 per week examining plaintiffs in lawsuits on behalf of defendant’s attorneys?
Q. Now, is it fair to say, Doctor, for examining plaintiffs for defendant’s attorneys and also testifying in court, you make about $1,500,000.00 a year?
Q. Now, Doctor, you mentioned you’re board certified, true?
Q. Doctor, a physician goes to take the boards, there are two parts to those boards, yes or no?
A. Yes, there are.
A. There is written part, correct?
Q. And there is an oral part?
Q. You failed the board examinations a number of times?
(b). IMPEACHMENT WITH PRIOR TESTIMONY Should you be fortunate enough to have obtained prior testimony which is inconsistent with the defendant’s expert on a material issue, the prior testimony should be used to impeach the expert. Do not ask the expert if he recalls testifying in the case, rather ask him as follows:
Q. Doctor, you testified in the case of Jones v. Day, true?
A. I don’t recall.
Q. (Showing transcript) That is you, Dr. Smith, is it not?
Q. You were retained by the plaintiff’s attorneys in that case, were you?
Q. You testified at page 5 line 7 as follows, did you?
(Read pertinent questions and answers)
Q. Dr. that was your testimony at that time when you testified for the plaintiff, yes or no?
(c) CROSS-EXAMINATION ON THE MERITS If the plaintiff’s attorney has learned the medicine, there is no reason he should not have the confidence to attack the testimony of the defendant’s expert on the merits. The following is an example of a portion of a cross-exam of defendant’s orthopedic surgeon in a trimalleolar fracture case:
Q. Do you agree that a fracture as sustained by the plaintiff is a serious physical injury?
Q. In fact, not only was the mortise disturbed, which is that pocket of bone made up by the lateral malleolus which is the end of the fibula, but also the medial malleolus, which is the distal end of the tibia, and the posterior malleolus, true?.
Q. The talus fits into this cup, and that is what give the ankle stability?
A. That’s right.
Q. More than the knee that relies more on ligaments and tendons.
Q. The problem with a trimalleolar fracture is that all those three bones anchoring the ankle are fractured?
A. That’s correct.
Q. As a result of that, the talus, which is that lump of bone that fits into it was dislocated?
A. That’s correct.
Q. The talus articulates or proximates the distal and or the far end of the tibial, is that correct?
Q. The problem with a dislocation, certainly a posterior dislocation of the talus, as we had here, is that it can have an impact on the articular surface of the tibia.
A. It certainly does.
Q. And the articular surfaces of bone, no matter what part of the body, is that smooth area of bone that allows an easy movement of one bone over the other, is that correct?
Q. When the articular surface is displaced, we have the precursor of traumatic arthritis.
A. Yo may.
Q. In this case we do.
VIII. SUMMATION (a) It is important to speak with the jury about the nature of injury and pain and suffering and the devastating effects upon a person. People naturally do not like to dwell on another’s pain and it is difficult for them to understand how an injury and pain can deeply and permanently effect a person’s life. The plaintiff’s attorney must develop themes for communicating this to a jury. The late Moe Levine was famous for the “Whole-Man” theme which he used to great effect over the years. Whatever the theme chosen, it must feel confortable to the attorney. Once thought out, it may be used over and over again. The following are general themes which we have found useful in assisting a jury to understand the calamity which has befallen the plaintiff:
You know, there is no yardstick. There is no magical formula to measure the pain and suffering of another human being. It’s a fact, I think, well-known that all of us shy away from focusing on the pain of another person. And I think it’s very understandable. It’s almost a defense mechanism. It brings us, when we have to do that, closer with our own mortality and our own fears about this type of pain, ’cause let’s face it, we all have that. We don’t focus on it. We couldn’t get by each day if we did. It’s difficult.
But in these last few minutes I am going to sit down soon and my role in this case is over. I am going to sit down soon and it will be up to you. Because the plaintiff can never, ever come back to court again. Ever. No matter what happens to him. He can never ever come back. And in these last few moments that are left to us it is our duty, it is your oath to focus on the pain and suffering that the plaintiff has endured and will continue to endure for the rest of his days.
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It’s your decision, and it’s a grave responsibility, for your decision is it for the plaintiff. It’s up to you to make sure that he receives just compensation. What is pain? You know the law says that we can put a person to death. We can put a person to death who legally is convicted of certain crimes, but we cannot cause that person pain because the infliction of pain is cruel and unusual punishment.
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Drug companies, as we know, make billions of dollars a year on pain medication. All you’ve got to do is walk into Duane Reade. We’ve all been there. Row after row after row of pain medications. Advil, Aspirin, Anacin, Motrin, you name it, to give relief for the slightest type of pain. Think about that. Pain is a condition, and pain is a condition of the type the plaintiff had which is not only debilitating, it’s terrifying, and the type of pain he suffered in that hospital is all encompassing. And the pain he will continue to suffer for the rest of his days is debilitating. He is a tough kid. He wants to work and he is. He is doing what he can do, but that pain will always be with him. A pain like this which is unremitting deprives someone of their God-given right to enjoy life. And the plaintiff was robbed, by the negligence of the defendant of his God-given right to the enjoyment of his life. It’s all of our rights. We take pleasure in things. There are certain things all of us do that we really take pleasure in. Recreational type of things. He can’t do them anymore. And he never will be able to do them. It’s taken away from him and it’s only in a courtroom such as this where we would even equate that type of pain with a sum of money. ‘Cause I’ll tell you something right now, the plaintiff would give every nickel he has, his last dime, if he could turn the clock back to prior to this accident. Give everything he had. So it’s only in a courtroom where we can even equate this type of pain with money. It’s been six years – and I am going to wrap it up. It’s been six years since this catastrophe. As I told you before, he can never ever come back into court again. This is it. It’s your responsibility.
(b) The jury should also be reminded at the end of the summation of their commitment to render a verdict based on the evidence and that it is their responsibility to render a just verdict. The following is one of many methods of doing so:
Back when we first met during jury selection – it seems we’ve been together a long time, and you’ll get rid of me soon, but it’s been a pleasure, really. But I asked each of you – and I tell you, I don’t ask questions for no reason – I asked each of you, should the evidence justify – and I told you it’s a tough question at that time, but now you know, now we’re all in the same position. I asked you, should the evidence justify, would you have any hesitancy in returning a substantial verdict for the plaintiff. And I recall all of you telling me, if the evidence justifies it, we can do it. And I submit to you, members of the jury, the evidence justifies nothing less. Verdicts aren’t large and verdicts aren’t small. Verdicts are either just or they are unjust. And a just verdict is a verdict based upon the evidence.
I’ve had the responsibility for this case for a good many years. As you all know — it’s always hard to sit down – but shortly, his Honor is going to charge you on the law, and you’re going to retire to deliberate, and that responsibility will pass to you to render a verdict. A fair verdict, a just verdict based upon the evidence, a verdict of which you can say when you leave here we have done justice. For your verdict will stand for our time. This is it for the plaintiff. And on behalf of him, I thank you.
(c) Countering the defendant’s plea not to be guided by sympathy:
The defendants have said to you don’t let sympathy guide you, be harsh, be cold. I say to you, be just. Use your common sense, your sound judgment, your understanding and comprehension as to what these defendants have caused and render a just verdict.
An excellent compendium on asking the jury for damages is “Asking the Jury for Money: How and When to Lay the Foundation”. Harvey Weitz, Esq., New York State Trial Lawyers Institute, 132 Nassau Street, New York, NY 10038
CONCLUSION This article is meant to be an outline of important areas in presenting damages on behalf of the plaintiff in a personal injury case. To successfully try plaintiff’s cases and effectively present damages, a complete mastery of a file thoroughly prepared is required.