Why Does the Other Side Get to Choose Your Mediator? (and Other Important Questions)
by Randy W. James, James Legal Services, P.C.

Good trial attorneys are meticulous in the preparation of their cases. They carefully choose their experts, research the judge and spend hours researching and selecting the jury who will decide the case. So why is it that more often than not, they let the other side dictate the choice of their mediator, the one person who may have as much or more influence on the successful outcome of the case than anyone else?

As a repeat offender in this regard, I examined my own thought process to find an answer. In 29 years of practice, I have participated in dozens of mediations and settlement conferences both as an advocate and, more recently as a mediator. In that time, my view of mediation has evolved from outright disdain to the desire to make mediation an integral and important part of the litigation process. In the beginning, I believed that the use of an intermediary was an unnecessary expense and injected an external influence in the case that could hamper, rather than enhance the prospects of settlement. In a process where sequestration of the parties is the rule, success depends in large part on the talent of the mediator in accurately communicating the parties’ positions to one another without violating critical confidences. Why take the risk of a third party doing more harm than good when attorneys and clients should be able to meet face to face and negotiate together in good faith?

The answer is simple. Because the courts have increasingly made alternative dispute resolution an essential component of modern day litigation, attorneys and clients (particularly on the defense side) have shown an increased reluctance to engage in direct negotiations, leaving the plaintiff’s attorney little choice but to mediate. So, part of my evolution is forced by circumstances.
The other part is the gradual realization that ADR has a significant, if somewhat unfulfilled potential in helping parties resolve disputes faster, cheaper and better. In other words, if you can’t beat ‘em, join ‘em. In any event, it is clear that ADR is now and will be, an important fact of life for trial attorneys and their clients, no less so than the other essential components of trial work, such as case investigation, discovery, experts, motion practice, jury selection, etc.

That leaves the question of who mediates your case. As I transitioned from direct negotiations to ADR, I initially failed to realize the tremendous impact either a good or a bad mediator could have on the outcome of my case. Instead, I took the approach that I did not care who the mediator was, because he/she could not make critical dispositive decisions like a judge or jury. I was wrong. While it is true that the mediator cannot compel the outcome of the case, I learned that the talent and preparation of the mediator can significantly influence that outcome. Given that truth, I went from a laissez faire attitude, to an advocate in the selection of a mediator. You should too. After all, it is your client’s case and you would not dare allow the other side to pick your experts or your jury for you, would you? ADR has become such an integral part of the litigation process and offers such an important opportunity to resolve the case, that you should use the same care in choosing a mediator that you would any other member of your trial team.

So how do you go about vetting your mediator to determine whether he/she gives you the best opportunity to resolve your client’s case? While no list is all inclusive, here are a few do’s and don’ts.

Do’s

1. Check your prospective mediator’s references. If you do not have personal experience with a proposed mediator, talk to other attorneys you trust about their experiences. And do not simply accept conclusory remarks, such as “He did a good job,” or “She really helped get the case resolved.” Delve into exactly what the mediator did (or did not do) that the attorney believes influenced the outcome of the case.
2. Talk to the mediator directly. Learn what his/her approach is to mediation both structurally and philosophically to determine if that is a good approach for your case and the dynamics of your relationship with your adversary. For example, if the case does not completely resolve at the mediation, does the mediator bring the parties together and document the progress made (preferred) or does he/she allow the parties to walk away with a bad taste in their mouths? Discussing these things will also help you determine if you are comfortable dealing with this person as an intermediary.
3. Learn what the mediator does to prepare for the mediation. Does the mediator expect that the parties provide specific, detailed information about the case in advance (preferred) or does he/she leave it to the discretion of the parties? Does the mediator conduct a pre-mediation conference with the attorneys to answer questions and to gauge the dynamics of the relationship between counsel and their clients (again preferred) or does the mediator use the mediation to get up to speed?
4. Determine whether the mediator makes efficient use of your time. Not every case will settle at mediation and sometimes that becomes clear early on. In that event, it is important to know if the mediator is willing to adjourn the mediation and save the parties (particularly the non recalcitrant party) additional time and expense. Or does the mediator spend all day regardless of the realistic prospects of settlement?
5. Look for a mediator that treats ADR as a profession rather than a hobby. Mediation is both art and science and should not be approached casually. An unmotivated, unqualified and/or unprepared mediator is just wasting your time and money. Remember, you work hard on your case, your mediator should too.

Dont's

1. Don’t allow the other side to dictate the selection of your mediator. They may tell you that their client only approves certain mediators as a way to control your choices. Remember that it is your client’s case and you have the right to approve your mediator as well. That does not necessarily mean that you won’t accept your adversary’s choice, but you should only do so after conducting the research outlined above. If you are not comfortable with any of your adversary’s selections and they will not accept yours, do not hesitate to approach the court for relief.
2. Don’t assume that a retired judge makes a good mediator. A common misperception is that retired judges automatically make good mediators because they are considered “objective”. However, objectivity is not the issue as much as the fact that judges are, by profession, “deciders” not facilitators. Their experience relates more to deciding a winner and loser, rather than bringing parties together in an amicable resolution. That is not to say that judges cannot be good mediators. Quite the contrary. But proper vetting is important with any mediator regardless of background.
3. Don’t allow local counsel or other surrogate do the vetting for you. If you are lead counsel, then you will likely be the one who deals most closely with the mediator. It is important that you personally learn as much as you can about the mediator before the session and develop a repoire if possible.

The take away from this article is threefold. First, mediation is a fact of life in modern litigation and represents a significant opportunity to get your client’s case resolved. The choice of your mediator is an important factor in whether that opportunity will be realized or wasted. Second, do not allow the other side to arbitrarily dictate your choice of mediator. It is your client’s case, so you should take the lead in making a choice with which you and your client are comfortable. Finally, unless you have had prior experience with a mediator, spend the time it takes to determine if that person is a good fit for you, your client and your client’s case.

Preparing the Client for Deposition
by Randy W. James - Randy W. James & Associates, P.C.

THE PLAINTIFF’S PERSPECTIVE

OVERVIEW

One of the most crucial, yet daunting tasks in the prosecution of a lawsuit is the preparation and production of the client for deposition. From the plaintiff’s perspective, the deposition not only reveals critical testimony regarding liability and damages, but also serves as the defendant’s opportunity to assess the client’s appearance and demeanor. The situation can be complicated by the witness’s relative inexperience in giving testimony. Clients come from diverse backgrounds and walks of life and, as such, may present equally diverse challenges in their preparation and production for deposition. That is why you as the attorney should give thought well in advance of the deposition about the issues you may confront in preparing and producing your client and develop a plan for addressing those issues when the time comes.

Preparing The Client For Deposition

In my experience, preparing the client for deposition falls into three categories:

1. The client’s appearance and demeanor,
2. Preparation regarding the deposition setting and procedure, and
3. Deposition rules.

Each of these categories is as important as the others, but may require more or less preparation and effort depending on the client and the circumstances of the case.

The Client’s Appearance and Demeanor.

How the client presents him or herself in the deposition may be as important as anything the client says. The opposition is always looking to size up your client to determine the client’s determination to pursue the litigation and whether the client will make a favorable or poor appearance before the jury. That is why it is critical to evaluate these issues in advance of the deposition and develop a plan of action if necessary. With some clients, the question of appearance and demeanor may be handled simply by informing the client of the importance of these issues. With other clients, however, additional work may be necessary to achieve the desired result. Regardless, it is important to emphasize that the client’s appearance must be appropriate for the setting and that issues such as clothes, make-up, grooming and hygiene should be addressed to the extent necessary. If you have any doubts about the client’s abilities or judgment in this regard, instruct the client to appear for the preparation meeting as he/she would for the deposition. That provides you an opportunity to assess the client’s appearance and make appropriate adjustments.

The client should also be instructed that demeanor in the deposition is critical to a successful outcome. Understanding that often times the deposition will arouse strong emotions, the client must understand that a calm and cool demeanor is essential. Generally, juries have natural sympathy for a witness, particularly one who has suffered a personal tragedy, when being cross-examined by an opposing attorney. As such, the witness has a natural advantage that could be lost if the witness becomes argumentative, angry or combative with the attorney. The client’s ability to remain polite and respectful, however, will preserve and enhance this natural advantage.

Deposition Setting and Procedure

Perhaps the most important aspect of this category is to distinguish the deposition with which the client is probably unfamiliar with conversations (formal or informal), with which the client may be familiar. Whereas a conversation may involve an expansive exchange of information and ideas, the deposition is conducted in a strict question and answer format. Typically, conversations move forward by the participants volunteering information, speculating about what the other participants mean or want to hear, and by exploring multiple subjects. By contrast the client should understand that the deposition is not a friendly conversation but is an adversarial proceeding with the questioner probing for information that will help the opposition defeat the client’s case. As such, the witness should be instructed to provide only the information called for by the question and not volunteer additional information, which may either be harmful to the case or, at the very least, provide the questioner of additional avenues of inquiry that he/she may not have considered before.

Given the client’s probable unfamiliarity with the deposition process, the strict question and answer format may prove a difficult adjustment. In an effort to simplify matters, I usually tell the client to imagine that the question is being typewritten on a computer screen, which the witness can read and contemplate before answering. After formulating the answer, the witness can then type the response, also visualizing it on the computer screen. Asking the client to visualize the question before providing a response not only allows him/her to more likely understand the question, but also to carefully contemplate the answer. This exercise is more like taking a test, or filling out a questionnaire or application, all of which the client is more likely to have had experience. To test this technique, you should then ask some practice questions to familiarize the client with the process and put him/her more at ease.

You should also explain the deposition setting and procedure and, if possible, expose the client to the room where the deposition will be taken. You should explain that even though a deposition involves a more informal setting with no judge, jury or courtroom, it is a formal proceeding where testimony given under oath will be recorded just as if it were given in court. You should explain that the deposition will be attended by the opposing attorney or attorneys who will be questioning the client, as well as a court reporter and, perhaps, a videographer who will record the proceedings. While most people understand what it means to take the oath to tell the truth, do not take for granted that the client fully understands the implications of taking the oath.

The client should also be prepared for interaction with opposing counsel. As mentioned above, you should make it clear that it is opposing counsel’s job to elicit information helpful to the opposition and harmful to the client. Yet, opposing counsel may be courteous, even friendly, to the client during the deposition and in so doing may attempt to disarm the client in an effort to obtain more information. The client should understand that this is a litigation tactic and that opposing counsel is not his/her friend.

As for substantive matters, carefully review the facts with the client and cover questions you anticipate opposing counsel may ask. This is particularly true of any problem areas you anticipate. Also, it is not essential, or preferable, that the client be a walking encyclopedia of facts and figures. Even though by the time of the deposition, you have probably served interrogatory answers and produced documents containing reams of detailed information, the client does not have to learn or memorize all of the information. Nevertheless, the discovery responses should be reviewed with the client for consistency purposes on issues the client would reasonably be expected to testify about like family, job and education history.

Deposition Rules Following are rules that every client should be prepared in advance of the deposition to follow in giving deposition testimony.

1. Always provide only the information called for by the question. Never volunteer information.
2. Never interrupt the question. Always wait until the question is complete and fully understood before answering. Giving a deposition is not like being a game show contestant where the contestant has to beat another contestant to the buzzer. Rather, the witness should pause, contemplate the question and provide a measured, level response.
3. Always provide audible responses such as “yes” or “no” instead of “uh-huh” or “huh-uh,” which can be misinterpreted in the record.
4. Never guess about information not known or remembered. It is always better to say “I don’t know” or “I don’t remember” if that is a truthful response. Guessing about information not known or remembered only asks for trouble and often finds it.
5. Always make sure that the question is fully understood before answering. If not, ask that the question be repeated or rephrased as appropriate.
6. Always beware of the compound question which contains two or more propositions, the answers to which may be different. For example, be careful of a question like “Would you agree that the light was red and you didn’t see my client before you entered the intersection?”
7. Always beware of questions that assume false facts or are based on false premises. For example, be careful of a question like “When did you stop beating your wife (husband)?”
8. Never let the opposing attorney put words in your mouth. It should be explained to the client that the rules generally allow opposing counsel to ask leading questions. The client should be instructed to never assume that a question calling for a yes or no answer can always be fairly answered that way. Likewise, the client should never automatically agree or disagree with counsel’s question. This is where the client should be particularly mindful not to be lulled by counsel’s friendly or trusting demeanor.
9. Always beware of the attempt to unfairly restate or summarize the testimony. Consider for example the following exchange,
   Q: How many times had you driven through the intersection?
   A: Maybe two or three times, at most.
   Q. So you’re saying that you were familiar with the intersection and knew how the lights operated?
   A. No. That’s not what I’m saying.
10. Always beware of “box-in” questions. Attorneys usually will attempt to limit the witness’s response to questions by asking something like, “Is there anything else?” or “Is that all there is?” This usually occurs with a personal injury client in the context of describing injuries and continuing problems. Instead of simply answering “yes” to these questions, it is usually better to respond by saying something like, “there may be, but that is all I can think of at the moment,” or “if there is, I will let you know.” This way, if the client has overlooked something in providing the answer, the answer can be supplemented at a later time without prejudice.
11. Never say, “Never”. Saying “never” opens the witness up to effective impeachment if one exception can be found. For example, suppose the opposing attorney asks, “Have you ever failed to stop a red light in the past?” The witness responds, “No, never.” If the attorney finds that the witness had indeed pled guilty to running a red light before, than the act becomes admissible to impeach the witness’s testimony, if for no other reason. Otherwise, if the witness had said “I don’t remember” or “I don’t know” or had simply admitted running the red light, it may not have come into evidence at all, particularly if it was an isolated incident that did not rise to the level of habit or routine.
12. Do not try to be the attorney. It is not uncommon for opposing counsel to ask the client to comment on legal claims such as theories of liability and supporting facts or elements and claims for damages. In confronting with such questioning, the client should always defer to the attorney’s expertise by saying something like, “I don’t know exactly. I rely on my attorney for those things.”
13. Always listen to the attorney’s objections. The client should understand that when his/her attorney makes an objection, the objection is not only for the record, but is telling the client what is wrong with the question. With proper preparation, the client should recognize and heed an objection to a question that is compound, calls for speculation, assumes improper facts, unfairly summarizes or restates the witness’s testimony and the like.

INTERACTION BETWEEN THE ATTORNEY AND CLIENT AT THE DEPOSITION

Proper advance preparation should minimize difficulties encountered at the deposition. Nevertheless, certain circumstances may call for interaction between the attorney and client during the course of a deposition. In this regard, there are several rules that I like to follow.

First, the client’s right to confer with his/her attorney is fundamental, but should be kept to an absolute minimum during the deposition. This can be accomplished with proper preparation, but in the event a conference is indicated, the client should be advised to wait for a break in the proceedings or to ask for a break so that the attorney and client can confer in private.

Second, the client should always engage the questioner with direct eye contact. The client should not look to his/her attorney for an answer or for the attorney’s reaction to an answer. The client should be instructed that if the attorney believes there is a need to intervene, the attorney will do so.

Finally, the attorney should not be reluctant to instruct the witness during the course of the deposition. For example, if the witness has responded to the question and is volunteering extraneous information, the attorney should matter-of-factly tell the client that he/she has answered the question. Of course, this should only be done where the client has legitimately answered the question. Also, if the attorney recognizes that the witness has forgotten something or has misspoken in response to a question, the attorney should intervene to clarify the record. While some may object to such a procedure, the purpose of the deposition is to obtain accurate and complete information. Rather than waiting to correct the misstatement or omission at a later time when opposing counsel does not have an opportunity to follow up or by disrupting the deposition by taking an unnecessary break to achieve the same result, a legitimate clarification on the spot should be welcomed in the interest of an accurate record.

CONCLUSION

As with any other aspect of trial law, preparation is the key to success in producing the client for a deposition. In this context, “success” is defined by the client making a good appearance at the deposition and responding truthfully, accurately and completely to proper questions with an appropriate demeanor. Adequate preparation also serves the very important purpose of making a difficult exercise easier for the client. Many clients have suffered a personal tragedy that a deposition forces them to re-live. Add to that the anxiety of an unfamiliar proceeding where much is at stake, and the client can be easily overwhelmed. No amount of preparation will ease the pain of the client’s loss. However, it can help minimize the client’s stress and anxiety which will not only benefit the client, but also make him/her better able to give a good deposition.

De-Selecting the Jury
by Randy W. James - Randy W. James & Associates, P.C.

Times have changed. Ten years ago, the skilled trial attorney could navigate the rapids of jury selection with confidence. While some prospective jurors resided at the extreme, most tended to be in the middle of issues relevant to jury service such as attitudes toward attorneys, views on tort reform and the value of the justice system, to name a few. But in recent years, fueled primarily by the propaganda of big business, the insurance and medical lobbies and right wing conservatives who cater to those interests, the demographics have shifted markedly to one end of the spectrum. While there are still jurors favorable to the rights of injured victims and their families, as well as those in the middle, far more jurors enter the courthouse today adverse to you, your client and the system that compels their attendance in court. Before you meet them for the first time, these people already believe that you and your client are greedy and unscrupulous, that their insurance rates and the price of goods is higher because of you and that good doctors are leaving their state because of frivolous lawsuits brought by . . . that's right, you! (Of course, when that claim is made in every state, it begs the question of where the doctors are going. But, that is an issue for another day.)

Unfortunately, these people are no longer the exception on venire panels. Noted jury consultant, David Ball, suggests that as many as 30% of prospective jurors today are adversely predisposed in this manner when they enter the courtroom. In my personal experience, it seems like a lot more than that. As important perhaps, these jurors are also more vocal in expressing this predisposition than ever before.

The only hope for you to obtain justice for your client, therefore, is to effectively "de-select" these people from the jury panel that will ultimately hear the case. In reality, of course, jury "selection" has always been a process of elimination. The jury hearing a case is comprised of who is left over after both sides remove objectionable venire persons with peremptory and cause challenges. The key difference today is that you likely will not be able to remove problem jurors with limited peremptory challenges alone. Instead, you must challenge them for cause and succeed. Because every case, jurisdiction and court is different, this task may be more or less difficult, but no less important. For example, in many federal courts the judge conducts voir dire and your opportunity to question prospective jurors is limited, at best. On the other hand, the state court judge may allow virtually unlimited voir dire, sometimes even exiting the courtroom while the questioning proceeds. Regardless of these circumstances, however, I recommend that you follow certain rules in voir dire that I have learned (primarily through the expertise of others) that should be applied whenever and to the extent possible.

Rule 1: There is No Such Thing as a "Clean Slate"

Early in my career, it was not uncommon to hear a lawyer conducting voir dire admonish the venire panel that the purpose of the questioning was to obtain a jury that was a "clean slate" on the issues relevant to that case. If the real objective was to impanel a group of 12 people who would process the information like zombies without reference to prior life experiences, I soon learned such a goal was not attainable. Every person of sufficient age to serve on a jury brings with him/her a complex belief system and set of life experiences that will influence how they perceive and define truth and reality. There is little, if anything, that you can do to change the beliefs, stereotypes and biases that comprise the "code" by which each perspective juror lives his/her life. The principal of primacy which holds, "that which a person believes, he tends to continue to believe," means that everything you say and do at trial, as well as every piece of evidence you present will be processed by each juror according to what they believed when they entered the courtroom. If the evidence that you present is consistent with, or at least can be reconciled with the juror's code, it has a chance of being received favorably. To the contrary, if the evidence contradicts the code, it will be rejected.

Your goal, therefore, is not to lecture the venire panel about being a "clean slate" or even about being fair and impartial, because it will do you no good. Everybody, particularly the most prejudiced and bigoted people, will tell you that they can be fair and impartial on most issues. And they believe it because everyone really is "fair and impartial" within the framework of their code. My friend and colleague from Springfield, Missouri, Steve Garner, recently gave the following examples in his presentation to the Missouri Association of Trial Attorneys. "Any person will tell you they can be fair because everyone honestly feels they can be fair within their framework of fairness. The Grand Wizard of the Ku Klux Klan would, in his own mind and scheme of fairness, be fair to a minority party to a civil action because fairness to him would include failing to recognize the individual's humanity. An executive for the largest insurance carrier in the world who does not believe that pain and suffering should be compensated and that paralyzed individuals should be forced to reuse diapers and catheters would tell you that he could be fair and he would be within his frame work of what is fair."

It is incumbent upon you to determine as much as you can during voir dire about the code by which the jurors will process the case. How do you do it? First, you must analyze the facts of your case to determine what codes are acceptable and consistent and which ones are not. This subject is a major source of conversation in our office as a case proceeds from intake through discovery and pretrial preparation. In an uncomplicated auto case, I discuss the facts with friends, family, acquaintances and colleagues to gauge their reaction to the facts as well as which party they are more likely to identify with. I use people I know in such cases because I am familiar, generally, with their "codes." In complex cases, we use focus groups to learn about the manner in which different life experiences and belief systems affect perceptions of the case. No matter how you proceed, however, it is critical to have a good idea going into voir dire of the type of juror you want. And, because you are really "de- selecting" the jury, this process allows you to identify the outliers in the group that you must target for a peremptory or cause challenge.

A case that we recently tried (and lost) gives a good example of this principal. We represented the family of a young man who was struck from behind by the driver of a pickup truck while riding his bicycle on a public road. Our young man died as a result of his injuries. At the time of the collision, the pickup truck was attempting to pass our young man in a no passing zone on a relatively narrow two-lane road. The pickup truck driver, knowing that he was in a no passing zone, tried to pass the bicycle without crossing the center line. The evidence also established that if the pickup truck driver had waited only eight seconds, the road widened to a four-lane thoroughfare where he could have passed our young man safely. Open and shut case? Hardly. Before trial, we identified the problem that most, if not all, of our prospective jurors would come into the courtroom with a life experience of having passed a bicyclist while driving their car or truck. We were concerned that those people would identify with the driver of the pickup truck and personalize the case to themselves thinking, "I have passed bicyclists in my car and this could have been me." We were also concerned that some jurors may question the validity of a wrongful death suit brought by the parents of a child where there were no economic damages to speak of because no amount of money could bring our young man back to life. Unfortunately, our concerns were valid to such an extent that we could not de-select enough prospective jurors to carry the day. Yet, every one of the people who served on that jury professed that they could be fair and impartial and, within the boundaries of their code, I am sure that they believed it to be true.

Rule 2: Get Them Talking

The key to learning the jurors' codes is to get them talking. Throughout the years, I have heard a number of lawyers conduct voir dire by lecturing the jury, asking close ended questions which elicit "yes" or "no" responses. While a certain amount of prefatory comment is appropriate to set up a question and close ended questions are appropriate under certain circumstances, I have learned by and large that the lawyer conducting voir dire has to be a good listener and must establish interaction with the venire panel. This not only allows for obtaining useful information, but also helps to establish the rapport that is essential to winning the case.

Most of the time, I start with a general discussion of the importance of the jury's role in the operation of the civil justice system and our appreciation of the sacrifice they are making. Keep in mind the obvious fact that almost nobody on the venire panel wants to be talking to you. They have lives, jobs, families and commitments of all sorts that have been disrupted by you and your client. So, after a brief introduction and description of the voir dire process, including the instruction to raise their hands if they have a response to a question, I start by asking, "Who is excited and glad to be here today?" Invariably, the question breaks the ice, establishes empathy for their situation and will, from time to time, elicit an affirmative response, much to the chagrin of everyone else.

I then spend a little time appealing to the sense of patriotism that hopefully most jurors feel by educating them about their role in the justice system and the importance of the justice system to our democratic way of life. I might say something like this.

Ladies and gentlemen, we and our clients, Mr. and Mrs. Jones, realize that your call to jury service has taken you away from your job, school, your family and other commitments that you may have. The inconvenience to you is not lost on us, and we appreciate your willingness to serve. At the same time, we hope that you appreciate that you are participating in one of our most important institutions. Jury service is the process by which citizens dispense justice among their peers in a civilized and orderly fashion. It is the difference between a society that respects and follows the law and protects the rights of its citizens from a society ruled by tyranny, chaos and anarchy. The world is full of examples of those kinds of societies. Jury service is the price that we pay for our freedom and it preserves our way of life. Your service here today ensures that this system will be in place for you and your family should you ever need it in the future. Because it empowers citizens like yourselves to make important decisions, jury service is also your opportunity to make a difference. You may never cast a vote that has more impact. Instead of being one of thousands or millions voting in an election, you will be one member out of twelve people who will make a decision that will have a lasting impact on the lives of Mr. and Mrs. Jones. I believe that when you leave here you will do so with the knowledge and satisfaction that through your sacrifice and inconvenience, you have not only done justice in this case, but you have done your part to preserve and better our justice system for all of us. For that we are grateful.

At this juncture, I follow up with questions relating to the justice system, including tort reform with the following questions as appropriate, not necessarily in this order.

1. "Does anyone believe that the jury system is not the proper way to dispense justice?"
2. I believe in the integrity and value of the legal profession. But I also know that its image in not the best in the eyes of the public and that it is not entirely undeserved, but I must ask this question so that we know how you feel. Is there anybody who says to themselves, "I don't like you or I can't believe what you say just because you're a lawyer?"
3. Our system of justice allows someone who has been injured or the family of someone who has been killed to be represented by a lawyer and come into court to have their legal rights decided. "Is there anyone who believes that an injured person should not be able to file a case in court and have it decided by a jury?"
4. "Is there anyone who has negative feelings about someone who retains a lawyer and files suit?"
5. "Is there anyone who believes that sometimes bad things happen to good people and just because we can't change what happened, we should just let it go and not pursue our legal rights?"
6. "Is there anyone who feels that for any reason they cannot sit in judgment of a case like this involving a dispute between our clients and the defendant (name)?"
7. "How many people agree with me that there are too many frivolous lawsuits?" (Raise your hand as you ask the question.) While there are contested issues in this case, nobody will claim that this is a frivolous lawsuit. It is a serious case with serious issues.
8. "Does anyone believe that because there are frivolous lawsuits, that you need to balance things out or even the score with your jury service on this case?"

These questions are sure to elicit affirmative responses by somebody. Then follow up by saying, "Tell me about it." This is where you have the opportunity to not only learn valuable information about the responder's code, but also to educate and to some extent persuade others on the venire panel. For example, if an insurance claims adjuster responds affirmatively to the question about frivolous lawsuits, and you ask him to tell you about it, he may use the McDonald's coffee case as an example of a frivolous lawsuit. You can then ask him the following questions.

1. Mr. Smith, is your knowledge about that case based on what you read or heard in the media? (Yes.)
2. Do you think the media always gives the full story? (Probably not, I suppose.) (Here you may choose to actually talk about specific facts of the case that are different than generally reported in the media, although this can be dangerous.)
3. Do you know what happened to the case after the jury verdict? (No.)
4. Sir, assuming what you read or heard in the media was true, do you also believe that the opposite happens on occasion in lawsuits, that a person who should have been held responsible is found not liable or a person who is seriously injured is not given adequate compensation? (I guess so.)

At this point you can direct a similar question to others on the panel. The questioning can then proceed to a discussion of the reason that large verdicts tend to get reported in the media because they are more sensational than the opposite situation where justice is denied. You can then ask your juror with whom you have now opened a dialog which he/she thinks is worse B the case where somebody gets more compensation than they deserve or a case where a deserving victim is denied compensation at all. The answer will tell you a lot about this person, particularly if his background does not raise a red flag.

The wrap up to this line of questioning is to express your concern that the results in other cases with whom the prospective juror may disagree might affect his/her verdict in your case. You should express that concern and ask, "Do you think it would be fair if Mr. and Mrs. Jones' case was affected by your feelings about another case that was decided some other place by a different jury on different facts?" Then personalize the matter by asking, "Mr. Smith, if you were hurt and had to come into court to enforce your legal rights, do think it would be fair if jurors decided your case upon what they had read in the newspaper or seen on television about a case decided by a jury somewhere else?" By now, you should be generating some discussion among the venire panel about these issues and, hopefully, identifying the tort reformers who would, in fact, use your case to 3 "even the score." You might then want to follow up your discussion of the justice system with questions designed to "get to know" your prospective juror with questions like, "What newspapers and magazines do you read?", "What television and radio shows do you listen to?", and "What bumper/window stickers are on your family cars?" It is amazing how much information about a person you can glean from these simple questions. For example, a person who reads the Wallstreet Journal, watches "Hannity and Colmes," listens to Rush Limbaugh on the radio and has a "W '04" window sticker on his car, is probably not your juror.

Take careful note of how the responses to these questions match up to the responses to your questions about the justice system, perception of lawyers and frivolous lawsuits. Even though many tort reformers are vocal about their beliefs, many will stand mute in an effort to get on the jury. These "stealth" jurors can be sneaky. Nevertheless, while they may duck your questions regarding their views about the justice system, they will have a harder time denying their affinity for Rush Limbaugh, which will give you ample clue of who you are dealing with.

Rule 3: Set Up and Execute the Challenge for Cause

Once you have identified the prospective jurors who you believe will be unfavorable to your case, you must effectively establish cause for their dismissal. The first step in this process is to be prepared to articulate what constitutes "cause" in your jurisdiction. This involves both research into the law and a pretrial discussion with the court. Understanding what the judge requires is essential. Your inquiries should range from the court's practice regarding dismissal of jurors for hardship reasons, to any "magic" words that the court must hear in order to establish cause, to the question of whether the court will attempt to rehabilitate a juror who has expressed some inability to be impartial. Some courts will be more forthcoming on these issues than others. If you find yourself before a court who will not discuss the matter to your satisfaction, talk to other lawyers in the area who have conducted voir dire before the same judge and learn what you can.

In setting up a challenge for cause, I do not recommend that you use the words "fair" or "impartial." Remember, almost everyone will tell you that they can be both fair and impartial, but their perception of those concepts may be different than yours. Instead, you should develop a system that will work with virtually any issue that you want to address with a prospective juror who you want to challenge. For example, suppose the topic is damages and you are addressing someone that you have identified as a likely unfavorable juror. Your inquiry may go something like this.

Q. One of the things that you will be asked to decide is how much money Mr. and Mrs. Jones are entitled to as a result of their injuries. Now, different people may take different things into consideration when making this decision. (Direct question to your favorite tort reform juror.) Mr. Smith, what things would you take into consideration in determining the appropriate amount of money to put in the verdict?
A. Well, I would consider Mr. and Mrs. Jones medical expenses and any income they have lost. I would also consider how a verdict like this might affect my insurance rates and whether or not my doctor can stay in practice because of all of these frivolous lawsuits.

Q. Mr. Smith, under our law, and the defense agrees with this, the only thing that you can take into account is the level of harms and losses suffered by Mr. and Mrs. Jones. That includes their medical expenses and lost income, but it also includes any pain and suffering that they may have experienced, disability as a result of their injuries and loss of their marital relationship. You are not allowed to take into account things like insurance rates and whether your doctor will move out of state. Some people have difficulty with that, others do not. Tell me about how you feel on this subject, Mr. Smith.
A. I would be very concerned if I could not consider the impact of these verdicts on my family and me. Plus, I think paying the medical bills and lost income is enough. This pain and suffering stuff is a bunch of hooey.

Q. On a scale of 1 to 10, Mr. Smith, how do you feel about this issue?
A. I am an 8.

Q. How long have you felt that way, Mr. Smith?
A. At least 16 years. All the way back to when Dan Quayle headed up the Committee on Competitiveness.

Q. Since this is a strong feeling that you have held for a long time, would you agree that you are not likely to change your beliefs in the next few days?
A. Yes, I would agree.

Q. So, Mr. Smith, would you agree that, in your mind, we are starting out behind on that issue?
A. Yes, I guess I would have to say that you are.

Q. And if we were to place how you feel about the things that you can take into consideration in rendering a verdict in this case on a scale, would you agree that your scale would tip to one side versus the other?
A. When you put it that way, I would have to say yes.

You have now demonstrated long-standing biases that should be sufficient for a cause challenge without ever saying the words "fair" or "impartial." The same questions can be asked about any specific issue in the case relating to liability or damages. In the bicycle case, we inquired as to whether anyone believed that a bicyclist had the same rights and responsibilities on the road as a person driving a motor vehicle or did they think it was different? The same process set forth above could be used to follow up by asking, Tell me about that, telling the venire panel that under the law, bicyclists have the same rights and responsibilities as operators of motor vehicles and that some people agree and disagree. Then the focus is narrowed to those who disagree.

Rule 4: Establish the Rules

Despite your best efforts, some prospective jurors will doggedly refuse to acknowledge anything suggesting that they can be less than balanced in their consideration of the case and, therefore, will not be excused for cause. When you do not have enough peremptory challenges to remove all of these people, your best hope is to establish the rules under which these people must judge the case. Many unfavorable jurors are right wing conservatives (there go the stereotypes again) who live their lives according to relatively rigid dogma. Right is right, wrong is wrong and there is no gray area in between. You can use this to your advantage. These people also believe in following the rules, and if you can make them understand that it is their obligation (in other words, the right thing to do) to follow the rules, then they might do it, albeit reluctantly. In the damages example discussed above, if your cause challenge against Mr. Smith fails, you should then remind him of what the rules are with respect to damages as to what he can consider and what he cannot consider and ask him if he is chosen on the jury if he will promise to follow those rules. If he says "yes" and you must leave him on the jury, you can remind him and the other jurors throughout the trial that they must follow the rules and it is wrong not to do so. Additionally, these questions allow a second opportunity for a cause challenge if Mr. Smith will not promise to follow the rules.

Another example relates to your discussion regarding burden of proof. I have seen burden of proof handled a number of ways in voir dire including several that I have experimented with myself. The approach I like best, however, was suggested by David Ball. Dr. Ball says not to use the words "burden," "preponderance," "prove," or "proof." The reason is simple. The word preponderance is meaningless to most people, and the words "burden," "prove" and "proof" suggest a much higher standard than "more likely true than not true." Utilizing the questioning framework discussed above, you could approach the burden of proof discussion something like this.

You will be making decisions based on whether we are more likely right than wrong, even the slightest bit. (Use hands in front of the body to imitate the scales of justice and tip one scale slightly lower than the other.) The defendant agrees that this is the appropriate standard. Some people feel that this is unfair and other people think that it is fair. Mr. Smith, tell me about how you feel. Are you closer to the people that feel this standard is fair or unfair?

Depending on the answer, of course, you can continue to follow up to the point of either establishing a challenge for cause or making clear the rules that must be followed by the jury. As an aside, Dr. Ball suggests the use of the hands imitating the scales as an anchor throughout the trial when examining witnesses, when asking experts about their opinions with a reasonable degree of certainty and in closing argument when discussing specific instructions.

Conclusion

This discussion is by no means exhaustive, although it pretty much exhausts everything I know on the subject. Instead, my hope is that these ideas will help define your general approach to jury Ade-selection from start to finish. Voir dire is not just the exercise of asking a bunch of questions or lecturing the jury about your case. In the modern era, I believe its purpose is to identify those jurors with whom you cannot prevail and to give you a chance of excusing those jurors for cause. That exercise, in order to be successful, requires a great deal of preparation starting with the development of your strategies, issues and themes of the case to identification of juror traits that are unfavorable to you and finally, identifying those traits and exploiting them to the benefit of your client. The extent to which you can apply these approaches depends on the nature and facts of the case, the jurisdiction and, to a large extent, the people you draw on your venire panel. Good luck.

Some Additional Thoughts on the Solution to Problems Created by Missouri's New Venue Law
by Randy W. James - Randy W. James & Associates, P.C.

OVERVIEW

In the aftermath of the 2004 elections, the Missouri legislature passed and the Governor signed into law, a number of laws that restricted the access of Missouri citizens to the civil justice system. Among those was a venue law that limited the filing of lawsuits strictly to the county where the cause of action accrued-the most restrictive in the nation.

Consequently, lawsuits that used to be filed in jurisdictions where the defendant(s) live, do business and/or commit negligent acts are now forced into courts where the parties' connection is no more than the fortuity that the accident happened there. What's more, many times the plaintiff(s) live, work and receive medical treatment elsewhere, as well.

The legislature also either failed to consider or ignored the fact that the new venue restrictions would over burden courts in smaller counties with complex, costly and lengthy cases. Whereas courts in urban areas are accustomed to handling such cases and have allocated resources to do so, courts in rural areas are hard pressed to devote the time and money such cases require. But the cases are coming, ready or not.

Impossible situation? Not necessarily. If bench and bar work together, complex cases can be effectively managed despite limited resources. Like anything worth doing, however, advance preparation is the key to a successful outcome. Set forth below are a few ideas for how this can be accomplished from beginning to end.

Beginning Stages of the Case

What happens at the outset of the case will often determine how the case concludes. That is why it is critical to get a handle on the complex case early so that the court and counsel can evaluate the challenges they face. Counsel for the parties should know from the beginning whether a case qualifies as complex, i.e., requires more than two weeks to try, will entail extensive discovery, and will involve numerous and varied evidentiary issues. In such cases, within 30 days following the filing of the defendants' answer(s), the court should require counsel for the parties to submit a report outlining factors that require special handling. The court should then schedule a Case Management Conference (not during law day) where the court and counsel can discuss and resolve the following issues:

1. Discovery * Extent and time needed; * How to resolve discovery disputes (i.e., by motion, informal conference and/or regularly scheduled status conferences); * Potential discovery cut off tied to trial setting.
2. Amendment of Pleadings/Additional Parties * Nothing wreaks havoc with a case schedule more than the addition of new claims or, more importantly, the addition of new parties, particularly after discovery has commenced. The court and counsel should discuss this issue and establish a fair but firm deadline so that the case cannot be derailed by last minute newcomers. That is not to say, however, that exceptional circumstances may arise later in discovery where it is determined that justice or rule would require the addition of claims or parties to the lawsuit. But early discussion of this issue will help limit these circumstances.
3. Length of Trial/Trial Setting * Any case that requires more than one week to try needs to be specially set. Such a case must be carefully planned and choreographed by the parties, particularly the plaintiff(s), who must proceed first. Lengthy cases likely involve the testimony of a number of out of town expert witnesses whose busy schedules make advance notice of a trial commitment a must. The same is true of counsel who must be available for a lengthy trial. Travel to out state areas far from urban airports should also be considered.
   
   The logistical complexity of such a case makes it impossible to "bump" the case from one setting to the next. Likewise, these cases cannot be geared up on short notice.
   
   That is why the court and counsel should discuss the length of trial, taking into consideration the court's commitments and schedule. Then after determining the projected length of the pretrial preparation period, the trial date should be specially set. This is critical. In order for a complex case to be effectively managed, the ultimate deadline- the trial date - must be set early on so that everything else works backward from there. Without a trial date, other deadlines tend to slip and the court and counsels' trial schedules fill up, making the prospect of bringing the case to issue anytime soon very dim.

Interim Matters

In addition to a deadline for adding claims and parties, the court and counsel should also discuss deadlines/schedules for the following:

1. Dispositive Motions B after discovery is substantially complete but sufficiently in advance of trial for the court to rule and parties to make necessary adjustments.
2. Motions in Limine B after discovery is substantially complete but sufficiently in advance of trial for the court to rule and parties to make necessary adjustments.
3. Designation of Deposition Testimony to Be Used at Trial, Objections and Rulings. * Again, this should be scheduled after discovery is substantially complete but sufficiently in advance of trial so that the deposition(s) can be edited for trial presentation. It is a good idea to schedule shortly following or in conjunction with rulings on motions in limine since those rulings will likely resolve many objections to deposition testimony.
4. Cautionary Note About Deadlines: The court and counsel should strive to set only those deadlines necessary to keep the case on track toward the trial setting. Scheduling the addition of claims and parties, dispositive motions, motions in limine, designation of deposition testimony and the like is important to preserving the trial date and ensuring that the trial proceeds as efficiently and orderly as possible.
   
   Other deadlines/requirements such as those often found in federal practice are unnecessary to these goals and may add more burden to the court and counsel. For example, the exchange of witness and exhibit lists seems superfluous at best if the parties have participated to any reasonable degree in discovery. Between the exchange of and response to written discovery, taking of depositions and motion practice (dispositive and in mine), the parties and court should be well acquainted with the evidence. Duplicative busy work does not advance the cause of efficient case management.
   
   In certain cases, however, the court and counsel may decide that exchange of such lists is more productive than wasteful, particularly where some trial exhibits are specially prepared and were not used in discovery. Nonetheless, these lists should still only be used as an aid to the court and the parties and should not define or limit the scope of the case at trial. Many Federal courts rigidly hold that any exhibit or witness not identified in a pretrial list cannot be used at trial, regardless of what was otherwise revealed by discovery. This approach causes one of two results B both of which are bad. If the party makes the list in good faith with exhibits and witnesses he/she actually thinks may be used, there is a risk of not being able to respond to unexpected issues at trial. Conversely, counsel who considers this possibility may throw everything, including the kitchen sink, into the lists which makes them largely irrelevant.
   
   This illustrates the point that communication, cooperation and clear directives, not inflexible form over substance rules are important to the effective management of the complex case.
   

Final Pretrial Conference

The court and counsel should schedule a final pretrial conference to discuss the ground rules at trial. Some of these issues include:

1. Courtroom decorum (counsel's position when addressing the court, witnesses and the jury; approaching a witness; handling of exhibits; publication of exhibits to the jury; etc.);
2. Objections (form and sufficiency);
3. Offers of Proof (how and when to make);
4. Bench/side bar conference (how to request and when appropriate);
5. Matters on the record;
6. Any scheduling issues the court may have that will interrupt the trial and length of trial day (start, breaks, lunch, adjourn);
7. Counsel informing opposing counsel of witnesses expected to testify the next day;
8. Submission of preliminary jury instructions;
9. Voir Dire B length and scope * insurance question * court's guidance on foundation for challenges for cause;
10. Size of jury panel B complex cases may require a larger venire panel than usual. This is a matter that should be considered in timely fashion so that enough people can be summoned to appear for the trial;
11. Opening statements * length (usually not limited) * use of exhibits;
12. Any other special issues/concerns/questions that have arisen the resolution of which will make the trial run more efficiently.

Logistical Issues

Perhaps the most daunting challenge faced by a trial judge who "rides circuit" and has busy dockets in multiple courthouses is the time to devote to a complex case. This challenge may be compounded by difficulty in devoting enough space to accommodate the case and conduct the court's other business, as well.

These are certainly issues that should be discussed at the initial case management conference and court and counsel should be prepared to cooperate on solutions. Mapping out the case schedule early on will help the court and counsel manage the case in harmony with the court's busy schedule. Counsel should be prepared to confer with the court in any of the courthouses in the circuit. Likewise, scheduling regular status conferences and willingness to conduct conferences by telephone can help compliment rather than conflict with everyone's work load. Counsel and their support staffs should also work with the court's staff to ease the court's burden.

If these practices still do not allow the court sufficient time to handle the case, the court and counsel may consider using a special master or senior/retired judge to assist in case management, discovery and/or trial of the case. For several reasons, however, this alternative should only be used in rare circumstances. First, the courts are established and funded for the purpose of administering justice in the State of Missouri and that is what they should do. Abdication of that responsibility to any degree should not be taken lightly. Second, the cost of a master or retired judge is often borne by the parties. With the cost of litigating complex cases higher than ever, additional costs can be prejudicial, particularly to the plaintiff(s). Finally, the new venue restrictions will be the law of the land for the foreseeable future. So, the courts should prepare now for more than the occasional complex case. Nevertheless, use of a special master or retired judge is a viable option where the benefits to the successful management of the case outweigh the disadvantages, particularly if the court is over burdened with multiple complex cases.

Limitations on physical space may also require the court and counsel to be flexible and inventive in their approach to trial of the case. There may be some circumstances where the courtroom is not large enough to accommodate a complex case involving multiple parties (and even more lawyers). Or, the court may be concerned about the ability to tie up the courtroom for several weeks at the expense of its remaining docket. Either way, the parties may consider alternative venues for the trial, such as a local community center, VFW hall or the like. Of course, the space would have to be of sufficient size and configuration to accommodate the trial (i.e., ample courtroom space with individual rooms for the judge=s chambers, witness rooms, jury room, etc.). Consideration should also be given to entrance/exits, restrooms and the ability to keep the jury separate from other participants in the trial.

Again, this is an option that should be used sparingly but is available when there is no reasonable alternative for trial of the case.

Conclusion

These comments are by no means exhaustive regarding the problems that may arise in the trial of a complex case in one of the many smaller circuits in the State of Missouri. Instead, they are intended to raise awareness about those problems and advocate early identification and solutions, rather than waiting until the last minute. Complex cases are tried just like any other case, except they are long and more involved, which requires careful planning by court and counsel from the outset. A little time spent on these issues at the beginning of the case will save a lot of time in the long run and result in a more efficient trial.

Steps to Successful Association With Co-counsel

By Randy W. James

Our firm specializes in products liability litigation involving, among other cases, heavy, medium, and light truck tire and wheel failures. As a result, most of our work is outside the Kansas City metropolitan area, where our office is located, and is done in association with local counsel who call upon us because of our experience in those areas.

In my 16 years of trial practice, I have associated with counsel in 23 states from coast to coast. Virtually without exception, those experiences have been enriching both personally and professionally, and most important, they have served the best interests of our clients.

Successful association with attorneys from other parts of the country with different backgrounds and experiences does not, however, happen by accident. In most cases, we are dealing with attorneys we have never met before. Yet for the duration of a particular case, we may be working more closely with these attorneys than we do with our own partners. Obviously, the potential for personality clashes, strategic disputes, conflict over division of workload, and other disagreements looms over and can threaten the association and the outcome of the case.

How do we avoid these problems? Luck probably plays a major role but is a factor that cannot be controlled. The best advice is to make your own luck by anticipating and resolving as many potential problems as possible early in the association to minimize their occurrence and effect at later, more critical stages. Here are some items that should be discussed at the offset.

Remember That The Client's Interests are Paramount

All lawyers know this rule, but interpretations vary. Early, frank discussions about goals and expectations about the case's outcome are critical. The client's needs must drive the case. The lawyers' interest and needs are purely secondary.

You must assure yourself that you and your prospective co-counsel are philosophically aligned on this point or trouble will probably ensue. Early agreement about goals can provide the framework within which any subsequent disagreements can be resolved.

Always keeping in mind that you are striving for the same result in the client's best interest tends to foster cooperation versus conflict, particularly since intractable conflict can only hurt, rather than help, the client's cause.

Clearly Define Responsibilities

Another way to avoid conflict is to define each lawyer's responsibilities at the outset. While these may shift somewhat during the case, a clear understanding about how the goals will be met and by whom can make for a smoother relationship.

For example, when we associate in a case, it is because of our experience with the liability aspects of the litigation. However, we have also gained a great deal of experience in evaluating, preparing, and presenting damages in catastrophic head injury and spinal cord cases. Therefore, we evaluate the experience of our prospective co-counsel in representing severely injured clients in determining our relative responsibilities for the case.

If we are associating with an experienced lawyer, we will often divide the case evenly, with our office handling the liability issues and co-counsel handling damages issues. Of course, it remains important to coordinate all our efforts so they are consistent with our overall strategy.

If we are associating with a relatively inexperienced lawyer, we may take primary responsibility for the entire case, with our co-counsel assisting on a variety of issues, particularly routine local matters that can save our client the expense of our travel.

Our co-counsel's interest in participating in the case is another factor in defining responsibilities. Regardless of experience, some referring lawyers prefer we handle the entire case, while others want to participate actively. In many cases, lawyers with less experience view their participation as a valuable learning experience.

Clearly Define Your Agreement for Sharing Fees and Expenses

This is perhaps the most critical aspect of attorney association. Once responsibilities are defined, you must reach an agreement about sharing of attorney fees and expenses advanced on behalf of the client. We associate on a sliding scale, with a higher percentage of the fee paid to us as our responsibilities in the case increase. We typically share expenses with co-counsel on a pro rata basis equal to our share of the fees.

Another aspect of expense sharing is who makes the decision to incur the expense. We always require that we have the authority to incur expenses we deem necessary for aspects of the case for which we have primary responsibility and vice versa.

While we may consult with co-counsel on special or unique matters, we make clear at the outset that our decisions on these matters cannot be vetoed. This is particularly important when dealing with co-counsel who does not have a great deal of experience in our field.

We always discuss and try to estimate case expenses in advance with the caveat that any such prediction is subject to change so that co-counsel has some idea of what to expect and the extent to which he or she desires to participate. You must also agree about when expenses will be paid.

In some cases, co-counsel does not wish, or is unable, to advance the kind of expenses necessary to properly prepare the case. When this occurs, we will agree to advance all expenses, but because our risk increases, we require a higher percentage of the fee.

Regardless of the manner in which fees and expenses are shared, the client's contingent fee obligation does not increase. This is one advantage of association. It allows two firms to pool their talent, expertise, and resources to achieve a better result for the client for the same price as one firm.

Reduce Your Agreement to Writing

No secret here. Agreements reduced to writing avoid misunderstandings later. We use two instruments. First, upon agreeing to associate in a case, we send a letter to co-counsel defining our responsibilities, the amount of the total contingent fee, and our agreement to share fees and expenses. Second, we follow with a new fee contract to be executed by the client, co-counsel, and ourselves that sets forth our agreements on fees and expenses.

We will not associate in a case unless the client agrees to our participation and our agreements with co-counsel. If co-counsel will not agree to this, beware.

It is important that all lawyers in the case be on equal footing with the client so he or she is fully informed and has control over hiring and firing attorneys. As associating counsel, you never want to be in a position where co-counsel can fire you from the case, particularly after you have devoted a substantial amount of time, effort, expense, and expertise to the effort.

No amount of preparation can avoid disputes in all cases. But it certainly minimizes the chances of serious conflict and can at least help protect you and your client.

In the only association in my career that went bad, we followed all the steps outlined above, only to find our co-counsel refusing to honor his responsibilities or pay his share of expenses. He even switched attorney fee contracts from the one suggested above to one that allowed him to hire and fire co-counsel at his discretion. Fortunately, the client was aware of our involvement in the case and our experience in this particular type of litigation and, upon discovering co-counsel's actions, terminated him.

We completed the representation, which resulted in a substantial settlement during trial. Co-counsel later asserted a claim for his original percentage share of the attorney fees. The court rejected the fee claim in large part due to the documentation memorializing our agreements at the outset of the case and co-counsel's failure to meet his obligations under them.

Despite the fact that difficulties can arise in any business relationship, we have found association among counsel an effective means of delivering the best representation possible to the client.

Association allows a lawyer who may not be experienced or financially secure enough to handle a case alone to remain involved in the client's representation. By pooling resources and talent, associating firms are not as apt to be outworked, outsmarted, or outspent by the defense tactics designed to force summary judgment, trial with inadequate preparation, or a cheap settlement.

An Ounce Of Prevention

By Randy W. James

Perhaps the most important trial tactic you can employ occurs long before the case is tried or, for that matter, filed. Put simply, the tactic is to know your client and your case earlier and better than your adversary does. Sound easy? In principle, yes. But in practice, unsuspecting lawyers not infrequently suffer the pitfall of learning damaging information about the client or case at an extremely inopportune time; say for example, your client's cross-examination at trial.

I selected this topic for the "Trial Tactics" column because full knowledge of the strengths and weaknesses of your case is fundamental to every strategy that follows, culminating with the trial. For example, knowing in advance that your client was convicted of a crime which can be used to impeach his credibility will certainly affect many of your trial tactics, not to mention your evaluation of the case. Conversely, failure to discover this information at least before your adversary does can spell disaster. Of course, this is only one of innumerable circumstances where to a greater or lesser extent, doom awaits. Unfortunately, I write from experience. I suspect many of you have "war stories" as well. Even if you are saying, "This has never happened to me," read on because it can happen to anyone.

At the risk of being accused of rationalization, these pitfalls are often encountered despite the attorney's best efforts. You may ask your client all of the right questions at the initial interview only to discover later a nondisclosure or misinformation. This is the circumstance to which this article seeks a solution. After all, if the attorney fails to discover important information about the client or case through lack of effort, even a persuasive, well written article (much less this one) will not help.

I advocate approaching the investigation of your case as an aggressive defense lawyer would. While thinking like a defense lawyer may seem unsavory at first, it makes sense if you want to get to the bottom of your case and discover its weaknesses.

My first suggestion is to propound "Case Evaluation Interrogatories" to your client which are a compilation of defense interrogatories derived from your experience in past cases. You know these questions will be asked sooner or later so you should start with them. Confront your client in writing with such issues as prior convictions, drug or alcohol usage before the occurrence, prior injuries, etc. Require that the client answer each interrogatory fully with supporting documentation, if necessary, and attach your version of all authorizations that will likely be requested by the defense. Finally, conclude the interrogatories with a certification such as the following:

SWORN SIGNATURE

STATE OF____________________) ) ss. COUNTY OF___________________)

The undersigned hereby acknowledge(s) that the answers given in response to these case evaluation interrogatories are true and complete and that no requested information has been withheld. The undersigned also acknowledge(s) that complete and truthful disclosure of the requested information is necessary to the accurate evaluation of the merits of this case and will be relied upon by (name of attorney or firm) in making that evaluation and in responding to formal pretrial discovery requests by defendant(s), should suit be filed.

_____________________________________

Subscribed and sworn to before me this _____ day of

______________________, 20___.

_____________________________________

Notary Public

My Commission Expires:

______________________

In my so far limited experience using Case Evaluation Interrogatories, I have found that clients take them more seriously and with a greater obligation to make full and accurate disclosure than they might questions posed orally in an interview. In a client interview the questions come and go quickly, as do the answers. But interrogatories are more difficult to avoid or dismiss, particularly when the answers must be certified. Case Evaluation Interrogatories can also be tailored to your specific concerns in a case, which has the advantage of making you play "Devil's Advocate" early on in your investigation.

Second, if the value of your case and your suspicions justify it, I suggest hiring an investigator to independently determine the answers to many of these questions. In other words, attempt to discover what the defense is likely to discover using the same tactic. Of course, you should inform your client of your action and that you are doing so in order to accurately evaluate the case. I believe that most clients will understand and support such an investigation, particularly if they know that the defense is likely to make similar inquiry. Clients who object may have reasons for doing so that you should explore. Even if the size of the case does not justify the expense of hiring an independent investigator, the client's answers to the Case Evaluation Interrogatories should provide you with sufficient background with which to make your own investigation, if necessary.

Employing these suggestions or other similar strategies at the initial stages of your client contact and case investigation may ultimately be your most important trial tactic of all. It goes without saying that knowledge of the strengths and weaknesses of your case are critical to determining not only what your trial tactics will be, but whether the case should be pursued and tried. Aggressive initial investigation beginning with your prospective client is a significant step toward this goal.

Use of Demonstrative Evidence in Proving Damages By Randy W. James

Damages are the bottom line of any personal injury or wrongful death case. The actions and strategies employed by the attorney for the plaintiff both before and during trial should be calculated to maximize his/her client's opportunity to recover damages and the amount of those damages. That is not to say that the attorney should ever attempt to maximize the damage award beyond the realm of reason considering the virtual certainty of post-trial and appellate review. But within legitimate bounds, the attorney should use all means available to him/her to effectively persuade the jury to award the maximum amount of damages the case will allow. This persuasion involves all aspects of the case and particularly includes the effective proof of liability issues without which the best evidence of damages in the world would be moot.

Much has been written on the subject of how best to persuade a jury. While approaches and techniques vary, legal scholars are unanimous in their opinion that the more senses with which a juror perceives evidence, the greater his/her comprehension and retention of that evidence. By and large, jurors are subjected to masses of auditory information--facts that they must perceive only by listening. Comprehension and retention of auditory information, however, is very difficult particularly in a long and complicated trial, which can result not only in a loss of critical information, but also loss of juror interest. Because there is no substitute for auditory information, the trial lawyer must bring the case live by involving as many of the jury's collective senses in the trial as possible. All else being equal, the attorney who presents a case so that it will be perceived by the most senses stands the best chance of being understood and believed. Remember that the jury selection process tends to eliminate jurors who have much experience or expertise in any of the liability or damages issues in the case. Therefore, it is the job of the trial attorney to persuade by education and educate by understanding. In a case involving complicated liability and/or damage issues, one can easily see why it is necessary to involve as many of the jurors' senses in the trial process as possible.

Of the four remaining senses--sight, touch, smell and taste--sight and touch are the senses most frequently used to supplement the spoken word. Under certain circumstances, however, smell and even taste might be used by the innovative trial lawyer to enhance the jury's understanding of the case.

These materials focus on the use of demonstrative evidence to enhance the comprehensibility and persuasiveness of your case. Demonstrative evidence is nothing more than a means of demonstrating a concept. It is "show and tell" for the jury. Demonstrative evidence can take many forms ranging from complex (and expensive) computer animation to a simple (and inexpensive) diagram of an accident scene. Even substantive evidence such as photographs and x-rays are inherently demonstrative and should be used to their fullest potential. Several examples of demonstrative evidence that can be useful in maximizing damages in a personal injury or wrongful death case are listed below for your consideration.

MODELS/ILLUSTRATIONS

Three-dimensional anatomical models and medical illustrations are quite effective in demonstrating your client's injuries to the jury. Models are most effectively used with the medical expert in educating the jury about the normal human anatomy in the areas of injury and how your client's injuries have affected that anatomy. Medical illustrations are most effective when they are used in combination with models and are drawn to depict your client's injury. Such illustrations should be in color depicting your client's condition at various stages of recovery, including pre- and post-treatment and should be enlarged at least to poster size. Several companies throughout the country specialize in producing these illustrations from a review of your client's medical records, x-rays, CT and MRI scans, photographs, etc.¹

These demonstrative devices are not only effective in aiding the jury's understanding of your client's injuries, but they are also relatively easy to introduce into evidence. Generally, although the trial court is vested with broad discretion in the admission of demonstrative evidence, models and illustrations are admissible with a simple showing that they are accurate and would aid in the jury's understanding of expert testimony. See, Fravel v. Burlington Northern Railroad , 671 S.W.2d 339 (Mo. App. 1984); Carver v. Missouri-Kansas-Texas Railroad Company, 245 S.W.2d 96 (Mo. 1952); Bloecher v. Duerbeck, 92 S.W.2d 681 (Mo. 1936). Demonstrative exhibits (particularly anatomical models) are also beneficial because, unlike other evidence, they many times can be used in opening statement. Demonstrative exhibits also effectively allow the attorney and expert witness to overcome the formality and rigidity of a "podium/witness chair" examination, wherein the jury may feel left out of the proceedings. With a demonstration that requires the attorney and expert witness to be in close proximity to each other and to the jury, the witness is better able to communicate with the jury, leaving it with a sense of involvement and interest that cannot be achieved by words alone.

PHOTOGRAPHS AND X-RAYS

One of the best, most economical and most readily available sources of demonstrative evidence are photographs and x-rays, including more sophisticated technology such as CT, MRI and SPECT scans. The use of pre- and post-injury photographs of your client is not only effective but essential in communicating the nature and extent of your client's damages to the jury. Many times, these photographs are available from the client or the client's family. Also, treating physicians may take injury photographs of your client, particularly if the injury is serious and involves the need for reconstructive surgery.² After you become involved in the case, take photographs of your client at various stages of his/her recovery, particularly where the recovery is protracted, so that the jury will have a visual record of your client's recuperation. This is particularly essential when it may take years to get to trial and because modern medicine has advanced to a point where through cosmetic and reconstructive surgery, your client may appear relatively normal by the time the case goes to trial.

The method by which photographs are presented to the jury is also important. Do not simply take small 5 x 7 photographs and pass them to the jurors en masse. Rather, make the most of each photograph by enlarging it and displaying it individually to the jury. Enlargement can either be done by a photographer or a reproduction service or can be accomplished electronically by reproducing the image of the photograph on a laser disk that can be enlarged and highlighted in any number of ways and displayed on a large television screen. Photographs can also be enlarged by making a transparency of the photograph and displaying it on an overhead projector. Alternatively, you can use an ELMO or other visual presenter that projects the photograph's image on a large television screen, without the necessity of first enlarging the photograph or recording it on a laser disk. The use of a visual presenter is effective, particularly where flexibility and spontaneity is required.

The admission of photographic evidence rests within the discretion of the court. Wood River Pipeline Company v. Sommer, 757 S.W.2d 265, 269 (Mo. App. 1988); Boyer v. Empiregas, Inc. of Chillicothe, 734 S.W.2d 828, 836 (Mo. App. 1987). To be admitted, the photograph must be authenticated as fair and accurate by a "witness who is familiar with the subject matter of the photo and is competent to testify from personal observation." Wood River Pipeline Company, at 269; Annin v. Bi-State Development Agency, 657 S.W.2d 382, 385 (Mo. App. 1983). The admissibility of photographs depicting plaintiff's injuries and course of treatment is well-settled in Missouri. The Missouri Supreme Court in McWilliams v. Wright , 460 S.W. 2d 699 (Mo. 1970) held that such photographs, properly authenticated, were relevant to "plaintiff's pain and suffering, prolonged hospitalization and other elements of damage which were directly in issue in the case." 460 S.W.2d at 705. Although the potential for prejudice is a concern, the courts have refused to exclude photographs merely because they depict serious injuries. Id. In Higley v. Missouri Pacific Railroad Company, 685 S.W.2d 572, 575 (Mo. App. 1985); the Eastern District Court of Appeals upheld the admission of an "admittedly gory" photograph depicting plaintiff's "mangled arm taken by the surgeon prior to amputation." The court noted that,

"The photograph was an accurate portrayal of the injuries to plaintiff's arm, was not enlarged and did not distort or exaggerate the injury. The photograph was relevant to the nature and extent of plaintiff's injury and to the damage element of pain and suffering sustained by plaintiff while being extricated and prior to amputation. We do not find an abuse of discretion.[Citations omitted]."

The same is true of x-rays and CT, MRI, SPECT and other radiographic scans. Many times they are readily available and should be used by the trial attorney to educate the jury in much the same way that the treating physicians use them to diagnose the injury. Many times x-rays tell physicians what they cannot see with the naked eye. The same is true of the jury, particularly if they are seeing your client for the first time several years post-injury. X-rays can be enlarged for presentation in much the same way as photographs.

DAY IN THE LIFE VIDEO

Another effective and relatively economical way to demonstrate your client's damages is the "Day In The Life" video. While the "Day In The Life" description is accurate, it does not by any means describe all of the demonstrative value of such a video. Not only can the video be used to show the plaintiff's daily post-injury routine, but, like still photographs, can be used to effectively follow your client's convalescence from the date of the occurrence to trial. We regularly do our own Day In The Life videotaping with a good quality VHS camcorder, not only to save on expense, but to better control the videotaping process. When we get closer to trial, we then identify the witnesses with whom we want to display portions of the tape and edit it accordingly.³

While "Day In The Life" videos are gaining wider acceptance throughout the country (corresponding with the trend toward greater use of video in various aspects of trial presentation), their admissibility is unsettled in Missouri. In the seminal case of Haley v. Byers Transportation Company, 414 S.W.2d 777 (Mo. 1967); the Missouri Supreme Court upheld the trial court's exclusion of films showing the plaintiff engaged in various activities in his home including,the difficult and laborious acts of getting from his bed into a wheelchair, getting out of it, getting into the 'stand-alone', an appliance which supported him and permitted him to move in an upright position, the moving of his legs manually one at a time in order to accomplish bodily movements, this being both done with and without assistance, the taking of weight lifting exercises, and raising himself from certain places and positions by means of an overhead bar."

Id. at 780. Noting that plaintiff's activities were "described in evidence without objection," and that plaintiff's counsel did not produce or offer any of the equipment depicted in the films, the court concluded that the films were self-serving hearsay in that "they would have constituted in reality testimony from plaintiff which was not subject to cross-examination."

Id. The court also commented that the relevancy of the films was outweighed by their potential to elicit sympathy from the jury. Id. The Haley decision was quoted with approval by the Missouri Supreme Court three years later in McWilliams. Unfortunately, the Haley trail ends with McWilliams at 705, both of which were decided in an era less receptive than the present day to the admission of motion pictures. The only case since 1970 to cite Haley on this point is Bolstridge v. Central Maine Power Company, 621 F.Supp. 1202 (D.Maine 1985). Relying upon Haley to exclude a "Day In The Life" video, the Bolstridge court concluded that such a video "dominates evidence more conventionally adduced because of the nature of its presentation . . .". Id. at 1203. The court also held that the video was cumulative because plaintiff could testify and demonstrate activities "similar to those depicted in the videotape." Id. at 1204. Consistent with the present view of many courts, however, the court seemed to reject the primary Haley holding that the video was inadmissible hearsay. The Bolstridge court noted that a properly authenticated videotape is much like a photograph and is not considered hearsay. Id. This is a well settled principle in Missouri which indicates that Haley may be distinguishable on its facts because there is no evidence that there was any authentication testimony accompanying plaintiff's offer of the film. See, McWilliams at 705. Further, several Missouri appellate courts, without mentioning Haley, have upheld the admission of various videotapes, including a "Day In The Life" video. See, Lawton v. Jewish Hospital of St. Louis, 679 S.W.2d 370, 372 (Mo. App. 1984); Roque v. Kaw Transport Company, 697 S.W.2d 254, 256 (Mo. App. 1985); Whitman v. Consolidated Aluminum Corporation, 637 S.W.2d 405, 407, 408 (Mo. App. 1982); Golston v. Lincoln Cemetery, Inc., 573 S.W.2d 700, 708 (Mo. App. 1978). In Lawton, the Eastern District Court of Appeals upheld the trial court's admission of a "Day In The Life" videotape holding that, the film illustrated the impact of the hip injury on respondent's daily routine. The nature and extent of respondent's injuries were facts essential to proof of his claims and necessary for the jury's determination of damages. [Citation omitted]. The videotape provided information essential to a fair jury determination because respondent's ill health prevented his appearance in the courtroom. Its probative value outweighed any prejudice that might have resulted."

Id. at 372. While Lawton recognizes the admissibility of a "Day In The Life" video, it is potentially troubling in that the court's affirmance seems to turn on the question of whether the plaintiff was able to testify at trial. The question remains unresolved, but it can be argued, particularly in a brain damage case, that the inability to effectively demonstrate plaintiff's disabilities in the courtroom even if he is available to testify, is tantamount to the absence cited by the Lawton court.

The common theme among the decisions is that the trial court has broad discretion in admitting or excluding videotape evidence. Typically, as with other photographic evidence, if it can be shown that the videotape will be helpful to the jury on a material issue and is a fair and accurate depiction, it may be admitted without fear of reversal on appeal. As with the models and medical illustrations discussed above, it therefore becomes essential to properly authenticate a "Day In The Life" video through one or more witnesses, including an expert witness along with testimony that the film depicts something which cannot be adequately demonstrated in court.

VIDEO TESTS AND COMPUTER ANIMATION

Introduction of videotape testing relating to the instrument of your client's injury usually relates most to the proof of liability issues in the case. This evidence can also serve the purpose of demonstrating the damages suffered by your client, particularly where it shows the mechanism of the injury and the forces involved. This is particularly true where the occurrence is not something with which jurors are generally familiar. Of course, the introduction of videotape testing is subject to the discretion of the trial court and a proper foundation must be laid for its admission on both substantive and demonstrative grounds. You must remember when laying the foundation for the admission of the tests to think "damages" and establish further that the test demonstrates circumstances which establish the nature and extent of your client's injury and damages.

The same things can be said of computer animation. More and more, computer technology is making it possible to recreate real life events through animation. Here again, the proper foundation must be carefully established for the introduction of such evidence. Assuming that can be done, however, computer animation can very effectively prove and demonstrate many issues in the case, including damages. In fact, computer animation has even been used to depict injuries, surgeries and other treatment, replacing in effect the use of medical illustrations (with a hefty increase in cost, however).

Footnotes

¹ With medical illustrations, it is important to obtain a preliminary draft and show it to the treating physician to confirm its accuracy or to make needed revisions prior to rendering the final illustration. Some companies submit preliminary drafts for revision as a matter of course. Others will make a final illustration unless a preliminary draft is requested. This practice will not only save expense, but will ensure the accuracy of the exhibit.

² A word of caution. You very likely will get the run-around in attempting to obtain these photographs. Treating physicians generally do not like to make it known that such photographs exist. Nevertheless, photographs are many times taken for E&O insurance reasons or for teaching purposes. Particularly where the treating physician practices at a teaching hospital, be persistent. Injury photographs can be very effective in communicating the nature and extent of your client's injuries to the jury.

³ Where the video promises to be lengthy because of the length of a client's convalescence and/or the complexity of the case, we spread the presentation of the video to the jury among several witnesses at various times during the trial and edit the tapes accordingly. Even with effective demonstrative evidence, too much of a good thing at one time can be counterproductive.

Considerations for Rehabilitation Experts Giving Testimony in the Traumatic Brain Injury Case

By Randy W. James, J.D.

INTRODUCTION

Today it is not uncommon for members of the health care profession to become involved in a legal action arising from their patient's injury or disability. This is particularly true of those who are involved in the treatment and management of catastrophic injuries, including traumatic brain injury, and those who perform forensic consultation. The purpose of this discussion is to briefly acquaint you with the legal system and to point out some considerations to be aware of when you are asked to participate in that system on your patient's behalf.

I. OBJECTIVITY AND YOUR PATIENT'S NEED FOR YOUR ASSISTANCE.

The American legal system gives each of us the right to seek redress in a court of law for wrongs perpetrated upon us by others. While various forms of civil remedies are available, the most common is the award of monetary damages which include past and future lost income, past and future medical and related health care expenses, pain and suffering, mental anguish and loss of comfort, support and consortium. While we are reputed to be a highly litigious society, only about one in ten injured individuals make claims for compensation in the civil tort system.¹ Cases involving catastrophic injuries constitute even a smaller percentage. Of the approximately ten percent of all injuries upon which claims are made, the "high profile" categories of product liability and medical malpractice where catastrophic injuries are likely to appear, only constitute three percent and ten percent of that total respectively.²

Nevertheless, the chances of you becoming involved as an expert in the civil justice system during your career is quite good. Whether you are a treating or consulting professional (or both), this possibility creates a challenge and an opportunity for you to provide a service to your patient that may impact on his/her life as significantly as the treatment you provide or recommend. By definition, life care planning is the road map to the medical, rehabilitation, and daily living needs of your patient for the remainder of his/her life expectancy. But like an automobile without fuel, the life care plan will not function without appropriate funding. In many cases, the civil justice system provides the best or only method of implementing the life care plan, not to mention the freedom of choice from the oversight of insurance companies, etc., it can offer to your patient in the implementation of the plan. Therefore, your involvement in the civil justice system could determine whether or not your efforts ultimately succeed or fail.

With this in mind, it may seem that the best way to achieve this goal is to be an advocate for your patient. While to some extent this is true, when testifying in your patient's case objectivity is paramount. The jury will automatically identify you with the party by whom you are employed whether it be as a treating professional or consultant for the plaintiff, or a consultant for the defense. Because of this preconception, it is essential that your methodology, analysis and conclusions in any given fact situation be the same regardless of who hires you. No matter which party you are serving, but particularly if it is your patient, objectivity and consistency will, in the long run, make you the best advocate.

II. CONFINE YOUR CONSULTATION AND TESTIMONY STRICTLY TO YOUR FIELD OF EXPERTISE AND KNOW YOUR ROLE.

A pitfall that must be avoided is attempting to exceed the bounds of one's expertise. Failure to do so can adversely affect your credibility, which is the central issue in every trial. If your credibility is suspect, so is your objectivity. The end result is obvious.

For example, a mechanical engineer who may be qualified to evaluate and testify about the content of appropriate product warnings and instructions may not be qualified to testify about the appropriate means of communicating those warnings and instructions. Yet if he does, he is subject to attack on the merits of his conclusions and his lack of qualification as well as the suggestion that he is willing to say anything to further the cause of the party who pays him.

A related issue involves the interaction between you as the expert and the attorney representing the patient for whom you are consulting or providing treatment. The success of this interaction can also be critical to the outcome of the patient's case.

The attorney's role is to advocate the position of the client by drawing together the various disciplines necessary to prove a case of liability and damages. In a product liability case, for example, the attorney must be knowledgeable about a variety of fields including engineering, communications, anatomy, neurosurgery, neuropsychology, brain injury rehabilitation, etc. The list goes on and on. Of course, the attorney also must know the law. If done properly, this can be a daunting task in the catastrophic injury case. Your role in this process is very important. Because most attorneys have little if any formal education in all of the disciplines involved in the trial of a case, what he/she learns in a particular discipline comes from you, the expert. Similarly, you must rely upon the attorney to inform you of your role in the case and to guide you in making a persuasive presentation to the jury. Effective interaction between the attorney and the expert is important to success in the courtroom.

How does this relate to the premise that an expert should confine one's self to his/her field of expertise? The answer is that the successful interaction between the attorney and the expert requires each to know his/her role. In other words, the attorney must do the lawyering and the expert must provide the substantive evidence within that field of expertise. The interaction falls apart if the expert tries to be the lawyer and vice versa. That is not to say that the attorney should not have a good working knowledge of the expert's field. After all, his/her credibility is important to the jury as well. That is also not to say that the expert should be totally unfamiliar with the court process. Familiarity breeds comfort, comfort in turn breeds trust. If you are comfortable and confident on the witness stand, the jury will be more comfortable with and confident in you.

The problem occurs when the attorney oversteps the bounds of his/her role by attempting to upstage the expert with his/her knowledge of the subject. The successful attorney allows the expert to communicate with the jury without undue interruption. The attorney should "navigate" the examination by directing the expert to specific areas of proof with the questioning. By the same token, the expert generally must not attempt to upstage the attorney by completely dominating the examination. Remember that the attorney should have specific points of proof in mind, strategies to execute, and an order of proof that fits the "game plan" of the case. I have had experience, fortunately rare, where the expert spouts a dissertation on the subject in response to a question that called for a narrowly drawn and succinct answer. Not only does such a response disrupt the game plan, but testimony may be given that is contrary to the strategy of the case.

Every general rule has a caveat. While it is desirable in the optimal circumstance for the attorney and expert to confine themselves to their specific roles, that is not always the way it happens. For example, an attorney may be unknowledgeable and unprepared and fail to ask questions essential to the development of your expert opinions. In that event, it may be incumbent upon you to volunteer that information if it can be done so as a legitimate response to the questions posed.

III. PREPARATION IS THE KEY TO SUCCESS.

There is no secret here. With any endeavor, preparation is essential to the desired outcome. Many of the problems cited above can be identified and solved by preparation. If the attorney and the expert prepare together sufficiently before trial, questions about their respective roles can be answered. With respect to your consultation and testimony, it is also essential that you be able to defend all of the opinions that you express. This requires that you carefully examine all information available, be it good or bad, analyze the information and draw your conclusions. Gather what information you can on your own and request that the attorney supply you the rest. This includes relevant pleadings, discovery and depositions taken in the case relating to your area of expertise. Do not accept selected information or summaries that do not allow you to fully analyze the materials yourself. After all, it is you who ultimately must defend the credibility and accuracy of your conclusions.

After you have made your analysis, play "devil's advocate" and examine the areas in which your opinions are most likely to be attacked. This is where the review of other expert depositions in the case may be helpful. The opinions of opposing experts may well provide a road map to the opposing attorney's cross-examination of you.

Also, as mentioned above, be familiar with the court process. Discuss with the attorney who will put you on the witness stand specific rules of courtroom decorum applicable in that jurisdiction and comply with those rules. If possible, it is very helpful to examine the physical layout of the courtroom in advance of your testimony so that you will know where the jury is seated, be able to evaluate acoustics and prepare for the presentation of exhibits. It is important to remember in giving testimony that you are testifying to the jury not the attorney or the court and that you should address the jury when testifying. Most attorneys will attempt to position themselves so that you can do so without making any dramatic physical movements. If the physical properties of the courtroom require you to look one direction at the attorney and another direction at the jury, do not look back and forth on every question and answer, but adjust your movements so that you address the jury periodically without appearing that you are attending a tennis match.

It is also helpful to familiarize yourself with the court process itself. Knowledge of the meaning of such terms as direct examination, cross-examination, leading questions and impeachment and their parameters is important. Just as the attorneys attempt to learn about your area of expertise to enhance their performance in the courtroom, so too should you learn as much as you can about their profession. Knowledge of the various events that are likely to occur during your testimony will better prepare you for what is to come, thus enhancing your presentation to the jury. A glossary of terms is attached which will at least provide you with a beginning to understanding the legal system. Even if you are an experienced expert witness, I suggest that you keep the glossary and add to it for future reference as your experience dictates.

CONCLUSION

This discussion is by no means comprehensive, but is intended to stimulate thought on the importance of the civil justice system to your patients, your role in that system and how best to present yourself before a jury. Frankly, I am hopeful that my comments will raise more questions than they answer with the goal that our verbal discussions can concentrate on the issues that are important to you.

GLOSSARY

AFFIDAVIT

You may be called upon at some point during the lawsuit to provide an affidavit stating your qualifications and at least certain elements of your opinions and conclusions. Generally, such an affidavit is used to support or to oppose a motion for summary judgment wherein one party seeks an order of the court dismissing the case without a trial. It is important that you review such an affidavit for accuracy because it too can be used to impeach your trial testimony.

CROSS-EXAMINATION

Examination of a witness conducted by the opposing attorney following direct examination. Generally, questions asked on cross-examination can be of a leading nature, i.e. suggesting the answer to the witness. An exception to this rule is where the scope of the cross-examination exceeds the scope of direct examination at which point many courts will require that "open" questions be asked.

DEPOSITION

At a deposition, you are typically called as a witness by the opposing attorney for the purpose of learning your opinions and conclusions. This is called a "discovery" deposition. The testimony that you give at a deposition is under oath just as it would be at trial and under certain circumstances may be admissible in evidence at trial. Generally, the purpose for taking a deposition is to discover the facts known to you, your opinions and conclusions and the basis therefor, and details regarding your background and qualifications. This allows the opposing attorney to prepare for your trial testimony and his cross-examination of you. What you say in a deposition can be used for impeachment purposes if you offer contradictory testimony at trial. You can also take advantage of the discovery depositions that the attorney for your patient has taken of the opposing experts.

DIRECT EXAMINATION

Testimony given by a witness who is called to testify by the attorney performing the examination. Generally, questions asked during direct examination must be open-ended and not suggest the answer to the witness. Many times, however, latitude is given in this regard to the examination of sophisticated or expert witnesses.

FAIR AND ACCURATE

Legal terms required as foundation for the admission of certain evidence, particularly photographs and diagrams. For example, "Doctor, is Exhibit 1 for identification a fair and accurate depiction of plaintiff's injuries at the time you treated her?"

IMPEACHMENT

The process by which an attorney uses a prior inconsistent statement given by the witness to place the witness's credibility in question. For example, if a witness testifies at deposition that the stop light was red and then testifies at trial that the stop light was green, the deposition testimony can be used to impeach the truthfulness of the trial testimony.

INTERROGATORIES

You may also be called upon to draft and/or approve responses to interrogatories which are questions propounded to your patient by the opposing party. These questions must be answered under oath by the party making the response. Therefore, as with an affidavit, it is important that the information contained in the interrogatory response be reviewed by you for accuracy.

OBJECTION

While everyone knows what an objection is, they may not know the procedure the witness must follow following an objection. This procedure varies according to whether the objection is made at a deposition or at trial. If the objection is made at deposition, it is generally made for the record for the court to rule on at a later time. Therefore, after the objection is made, the witness is allowed to answer the question unless instructed by his/her counsel not to do so. At trial, the court will rule upon the objection. If the objection is sustained, the witness shall not answer the question. If the objection is overruled, the witness may answer the question. In all cases, however, when an attorney makes an objection, the witness must stop speaking and allow the objection to be made before continuing.

TRIAL EXPERT vs. CONSULTING EXPERT vs. TREATING EXPERT

Your involvement in the lawsuit may fall into one or more of three categories; trial expert, consulting expert and/or treating expert. The importance of these designations is that different legal rules apply to each. For example, the identity, opinions and conclusions of a trial expert generally must be revealed to the opposing party in discovery. To the contrary, the identity, opinions and conclusions of an expert retained purely for purposes of consultation generally is protected from such disclosure. Depending on the jurisdiction, different rules apply regarding expert disclosure, necessity for appearance at trial, etc., if you are a treating expert.

TRUE AND CORRECT

Also referred to as "true and accurate," these are the legal terms that must be referred to as a foundation for the admission of a copy of a document in evidence. For example, the attorney may ask if Exhibit 1 is a "true and correct" copy of the report submitted by you on a certain date.

VOIR DIRE OF THE WITNESS

Many people associate the voir dire with jury selection which is appropriate. However, in the context of witness testimony, voir dire can be used by an opposing attorney to ask questions that will establish the foundation for an objection. For instance, if a witness is testifying about certain facts or events, an attorney may ask the court if he can "voir dire the witness in anticipation of an objection." Most of the time the court will allow brief questioning upon such a request. The voir dire may establish that the witness has no personal knowledge of the facts or events to which he is testifying, thus making him incompetent to do so. If the voir dire examination reveals such to be the case, the opposing attorney may then make an objection and it should be sustained. In many cases, the voir dire examination reveals no facts which would support an objection and it will be overruled. Do not be surprised if during your testimony such a request is made at some point.

WITH A REASONABLE DEGREE OF CERTAINTY

Also known in some jurisdictions as "with a reasonable degree of probability," these are the legal terms necessary as a predicate to the expression of an expert opinion. The phrase should be modified to accommodate the particular expertise. For example, "Doctor, do you have an opinion with a reasonable degree of certainty in the profession of brain injury rehabilitation counseling?" Most jurisdictions hold that such a predicate is required for an expert opinion to be admissible in evidence.

Footnotes

¹ Institute for Civil Justice, RAND Corporation, 1987. ² Ostram, Pottman and Hanson, What Are Tort Awards Really Like? The Untold Story from the State Courts, LAW & POLICY, Vol. 14, No. 1, January 1992, P. 77.

Lawyer Bashing and Jury Selection

By Randy W. James

Q. "What do you have when a lawyer is buried up to his neck in sand?" A. "Not enough sand."

An innocent lawyer joke? Maybe not. Lately it seems that lawyer bashing abounds. It is popular to dislike or distrust lawyers and, while much of it is undeserved, public trust in the legal system is suffering. Unfortunately, that diminished trust is reinforced by well publicized cases of lawyers run amok and less than tasteful lawyer advertising. Although lawyer bashing is of great concern, it does not adversely affect the everyday practice of many lawyers. Trial lawyers, particularly plaintiffs' trial lawyers are a notable exception. Nowhere is the potential for a problem from lawyer bashing greater than it is in a jury trial where your client's future will be judged by peers who have been exposed to adverse publicity about lawyers and the legal system and may well hold beliefs that are obstacles to a fair trial. Put simply, if one or more jurors dislikes you because you are a lawyer representing a plaintiff's interests or dislikes your client because he/she filed a lawsuit, your case is severely damaged or lost.

This potential makes it essential for you to discover and attempt to eliminate potential jurors with these biases during jury selection. While this proposition may seem obvious, there has been much debate historically as to whether or not the issue of the public's perception of lawyers and the legal system should be addressed in voir dire. Opponents suggested that the risk of eliciting comments that could infect the entire panel outweighed the benefits of raising the issue. Until recently this may have been sound advice. Now, however, the chances of multiple venire persons having perceptions of the legal system adverse to your client are sufficiently great to justify the risk of raising the issue at the outset.

Nevertheless, in raising this issue, you should still guard against the risk of a potential juror poisoning the rest of the panel. With any voir dire topic, your approach must be carefully planned. This is particularly true with an issue as volatile and pervasive as lawyer bashing. Your approach should recognize the fact that most venire persons do not want to serve jury duty whether they dislike lawyers or not. Add to this disposition a preexisting bias toward the legal system and real trouble awaits you.

Therefore, the first step I suggest is to attempt to separate those who are simply frustrated at interrupting their lives for jury duty from those who are truly discontented. I find it beneficial to explain the nature and importance of the civil justice system to all citizens and the critical role that jurors, lawyers and judges play in that system. Voir dire is your first and best opportunity to recognize the sacrifices venire persons must make for jury service, but that by serving as jurors they are ensuring that the system is available for their use and the use of others important to them should the need ever arise. If you are trying a tort case, you should also explain to the jury that the civil justice system provides a remedy in the form of money damages and that you will be seeking a verdict from them within the framework of that system.

While this approach (which must be carried out with sincerity) may pacify most venire persons, nothing you say or do will soften the bias of those who have had bad experiences with lawyers or judges or who are convinced of the merits of lawyer bashing. Your purpose here is not to convert these people but to identify and eliminate them if you can. I suggest asking the simple questions, "Have you ever had a bad experience with a lawyer, judge or legal system?" and "Do you have a bad opinion of lawyers, judges or the legal system?" If you obtain affirmative responses to either or both of these questions, you must proceed with caution. Should you elicit further information from the venire person in the presence of the panel or should additional voir dire be conducted individually in camera? The answer is not as clear cut as it might seem. Depending on the number of affirmative responses you get and the backgrounds of those persons responding, you may decide to explore the subject openly. The risk of the jury perceiving that you are hiding something from them with individual voir dire may outweigh the risks in some circumstances. However, because of the potentially volatile nature of these answers, you may want to prearrange individual voir dire or request it at the time of the initial affirmative responses particularly if you receive a large number of responses. Even though the rest of the panel is left to guess about the reasons for the adverse opinions, the risk is contained.

In either case, you should explore the reason for the bad opinion fully. Assuming you decide that the juror should be excused, you should lay your foundation for a challenge for cause by inquiring as to whether the juror's opinion affects his/her ability to judge the case fairly. In most cases, these are people who would rather not serve as jurors anyway and they likely will tell you that they may not be fair or impartial. Even if your challenge for cause is unsuccessful, you have identified someone as to whom you may wish to use a peremptory challenge.

A supplemental or alternative approach is to briefly outline the nature and amount of your client's special damages and tell the panel that they may be asked to assess special and general damages in their verdict. Then you ask something like, "We will ask the jury for a verdict for damages in excess of $____________. (Selecting a sum in the range of what you will ask for in closing argument.) Does anyone have a problem with that amount of money in and of itself?" You must be careful here to avoid pre-committing the jury by asking the affirmative side of the proposition, "Could you award damages in excess of $____________?" You may draw the objection anyway and it may be sustained. But if allowed, it will certainly elicit responses from those who could not render the verdict you seek regardless of the evidence. This approach is most important in larger cases where the chance of an affirmative response is greater. A juror who may render a verdict for $50,000 in one case may be unwilling to award $5,000,000 in another case even if the evidence supports such a verdict. This reluctance may result from lawyer bashing or any number of reasons which need to be explored with care as discussed earlier. In any event, it is critical that you identify these people as well.

These suggestions are by no means exhaustive nor are they intended to represent the only approach to the problem of identifying and eliminating potential jurors with bias against lawyers or the legal system. I hope, however, that they will draw your attention to what I believe is a serious obstacle to a fair trial and your chances of success. Until and unless lawyer bashing abates and public confidence rebounds, this is an issue that should reside at the forefront of your preparation for jury selection.

In the meantime, . . .

Q. "What is the difference between a lawyer and a carp?"

A. "One is a scum sucking bottom feeder and the other one is a fish."

Assembling the Tire-Rim Case

By Randy W. James

Multipiece tire-rim or wheel assemblies have been used on trucks, buses, and off-road vehicles since the advent of the pneumatic tire. Although their use has diminished in recent years, they are still common on the nation’s highways.

An assembly usually consists of two or three steel components that join together to support a tire under inflation pressure. Most assemblies have a large weight-bearing base and one or two retaining rings called side or lock rings. The side or lock rings, which are shaped like the letter O, are often split, letting them expand for assembly to the base after a tire has been mounted.

The design of many multipiece rims and wheels allows the side or lock rings to explosively separate from the base under the pressure of an inflated tire. Typically, there are no backup or positive means of securing the rings to the base to prevent them from coming apart. The likelihood of an explosive separation increases when components made by different manufacturers are used in the same assembly. Mismatchings are frequent because components with subtle but critical design differences may appear to match due to diameter and width uniformity specified by Tire and Rim Association standards. Although the components are stamped with letters and numbers for identification, these markings have no apparent pattern, and the confusion in enhanced by different manufacturers’ use of similar markings for different designs.

When the stamps are decoded, they contain letters that identify the components’ design. These stamps also tell who manufactured the components and when and are critical to evaluating an explosive separation case because they reveal whether or not there was a mismatch. Even with correctly matched parts, the stamps are important in identifying the components because certain multipiece designs are notorious for explosive separations.

At pressures between 75 and 120 pounds per square inch, a standard size over-the-road truck tire and assembly contains 40,000 to 70,000 pounds of force. This force can raise a 3,000-pound car 23 feet off the ground or throw a 16-pound bowling ball three-quarters of a mile. When exerted on the steel components of a multipiece assembly, the force can cause serious injury or death.

Preliminary Investigation and Evaluation

When a victim of an explosive separation contacts counsel, an immediate preliminary investigation is necessary. Early case development is particularly advantageous in these actions because chain of custody and product identification are central to plaintiff’s case and are often the first line of defense for the opposition.

Counsel should first secure the rim or wheel assembly that caused the injury and not rely on third parties to preserve the evidence. As mentioned above, it is vital to record the stamps on the components because they determine the potential defendant(s). The make, model, and year of the vehicle involved should also be recorded. If the components were original equipment on the vehicle, the vehicle manufacturer may be an appropriate defendant.

If counsel cannot get the components, some jurisdictions permit court orders to compel the people who have them to give them up or preserve them. Although it is best to have the actual assembly, an order to preserve helps prove chain of custody and identification at trial and, if the components are lost, aids in spoliation-of-evidence action against the people who had the components.

Counsel should then get the companion parts used with the tire-rim or wheel assembly. Although they are not necessary to the success of a suit, the inner tube, tire and flap can provide forensic evidence. For example, the rip pattern in the inner tube can identify the design of the rim or wheel. A rip around the inside of the tube characterizes an explosive separation.

Once counsel has all the available components, he or she should paint the victim’s name on all the pieces in the presence of witnesses who will testify about the chain of custody. Because most people cannot distinguish rim or wheel parts and it may be years before the witnesses see the components again, the names provide easy identification in court. It is also helpful to get from each custody and fact witness affidavits about the identification and preservation of the components and the facts of the accident.

After the components are secure and witnesses have given statements, counsel can evaluate the case by assessing the likely defenses. If the investigation has revealed that identification or custody is questionable or that the product is lost, chances of success are diminished. The case is also weakened if contributory negligence is a possible defense. Juries are more sympathetic to victims who were bystanders or who were following manufacturer’s instructions than to victims who misused the product.

Counsel must consider the age of the components if the jurisdiction where the suit will be filed has limitations or repose statutes that release merchants and manufacturers from liability at a specific time after a product’s sale or manufacture. If the limitations period begins on the date of sale to the first user, counsel should not assume that the manufacturing date triggers the limitations period. Unlike many other products, tire-rim or wheel components are not always sold shortly after they are manufactured. Without exception, where limitations defenses have been raised, manufacturers have been unable to trace components through the stream of commerce to identify the date of sale to the first user.

Theories of Recovery

Once a decision is made to litigate counsel should tailor the theories of recovery to the case and forum. Generally, tire-rim-assembly actions allege defective or negligent design and failure to adequately warn and instruct. Because these allegations are based on a defendant’s conduct, they can sound in strict liability or negligence.

A defective design claim should focus on the tire-rim components’ tendency to explosively separate. There are alternate designs that substantially eliminate this problem (for example, those with backup interlocks that prevent the rings and base from separating). Also, a single-piece rim design that does not have detachable components has been available for trucks and buses for 35 years.

With a failure to warn or instruct claim, counsel should remember that most accident victims have never seen warnings or instructions disseminated by the industry. Warnings and instructions seldom remain attached to or visible on the components, and those that do are usually inadequate. For instance, some industry literature says to put the rim or wheel assembly in a safety cage or other restraining device before inflating the tire. These instructions imply that after the tire is inflated, any danger has passed. However, manufacturers’ accident files show that a significant number of explosive separations take place during mounting, demounting, and transporting assemblies after inflation.

When drafting a complaint, counsel should take advantage of rules allowing notice pleading. Notice pleading permits flexibility in proving facts and prevents defendants from using the complaint to impeach facts revealed at trial that differ from those thought to be true when the complaint was written.

Discovery Strategies

Plaintiff’s opening interrogatories and requests for production and admission should accompany the complaint. The interrogatories should ask for other instances of explosive separations of the design type involved. They should also seek detailed facts about those occurrences, including their locations, the products’ types and sizes, the courts where suits were filed, and the names and addresses of the plaintiffs’ attorneys and expert witnesses in those suits. This information can corroborate plaintiff’s expert testimony on design defect and danger, prove that defendant had notice of the defect yet failed to warn or instruct, and provide valuable information about past discovery and testimony by industry employees and experts.

Opening interrogatories should also ask for the production dates of the components involved; the identity of past and current employees with responsibility for design, production, sale, safety, warnings, and instructions; the location of any depositories where records on design, production, sale, safety, warnings, and instructions are kept; the description and dates of all design modifications; the contentions on causation (whether the acts or omissions of any person or entity caused or contributed to the occurrence); and all warnings and instructions defendant claims to have given plaintiff and his or her employer. Counsel should include a queston designed to determine whether the defendant has destroyed any materials in response to plaintiff's requests.

Counsel should be alert to responses restricted to a particular size of rim or time period; to avoid disclosure, defendants often answer general interrogatories with limited, specific responses. The product’s accident history is important to the success of the case, and counsel should not hesitate to seek court intervention if defendant is uncooperative.

Requests for production should seek all legal, engineering, and expert-witness files on other occurrences identified in responses to the interrogatories. Counsel should also ask for copies of the warnings and instructions defendant disseminated, the files maintained by people named in the responses, access to any depository where records are kept, and engineering drawings of the assembly’s design type throughout its production history. These items can provide information to prepare depositions and additional interrogatories.

Counsel can use requests for admissions to narrow the issues, particularly factual ones such as product identification and chain of custody. Requests based on engineering, legal, and management documents should contain exact language from those documents. If the proposition in the request is admitted, plaintiff’s ability to prove liability is enhanced. If denied, it is effective trial strategy to alert the jury to the request and denial, followed by publishing the corresponding document to demonstrate the inconsistency in defendant’s responses. Requests for admissions can also authenticate defendant’s internal documents and lay a foundation for their use as an admission or a business record.

Regardless of the discovery tools used, a tire-rim-assembly action requires that counsel be tenacious. Manufacturers will not readily divulge their knowledge, and they have a great deal of experience litigating these cases. Although some court enforcement might be needed with discovery, such intervention may lead to the evidence necessary for a satisfactory outcome. Therefore, plaintiffs’ attorneys should be aggressive in representing their clients’ interests from initial investigation to closing argument.

Effective Demonstration of the Defect

by Randy W. James

Missouri Association of Trial Attorneys 32nd Annual Convention June 21-24, 1990 Lake Ozark, Missouri

Much has been written on the subject of how best to persuade a jury. While approaches and techniques vary, legal scholars are unanimous in their opinion that the more senses with which a juror perceives evidence, the greater his/her comprehension and retention of that evidence. By and large, jurors are subjected to masses of auditory information—facts they must perceive only by listening. Comprehension and retention of auditory information, however, is very difficult particularly in a long and complicated trial, which can result not only in a loss of critical information, but also a loss of juror interest. Because there is no substitute for auditory information, the trial lawyer must bring the case alive by involving as many of the jury’s collective senses in the trial as possible. All else being equal, the attorney who presents a case so that it will be perceived by the most senses stands the best chance of being understood and believed. Product liability cases where proof of product defect may involve evidence of complicated scientific or mechanical principles which would be very difficult for the jury to grasp simply by listening, are prime examples.

Of the four remaining senses—sight, touch, smell and taste—sight and touch are the senses most frequently used to supplement the spoken word. Under certain circumstances, however, smell and even taste might be used by the innovative trial lawyer to enhance the jury’s understanding of the case. While you should strive to involve as many of the jury’s senses at all stages of the case, perhaps the most critical period surrounds the presentation of expert testimony. Your liability expert can be critical to the success or failure of your case. Much of that determination depends on the manner in which the expert’s testimony is presented. Contrast the case in which an expert sits passively on the witness stand and offers complex testimony about a product’s design, its failure mode and causation without the use of any visual aid with the expert who supplements his/her testimony with product demonstration, using the actual product, component parts, models, cut-aways, diagrams and illustrations, videotapes, or computer generated images. While the expert in example one may technically fulfill your burden of proof, the expert in example two will fulfill your burden of persuasion by being more believable and understandable. If your case involves forensic accident reconstruction, use the Courtroom as the expert’s laboratory and recreate the process through which the expert drew his opinions and conclusions, rather than merely having him testify to those opinions and conclusions. For instance, if the expert used a microscope to identify witness marks on the product that aided in the reconstruction of the product’s failure, use the microscope in the Courtroom to duplicate the expert’s analysis, inviting, with the Court’s permission, the jury to view the product through the microscope as the expert did. Now, the jury is not only listening but is using its senses of sight and perhaps touch to actively involve itself in the investigation. The trial lawyer and experts who are willing to allow the jury to "see for themselves" will be far more credible than those who merely allow the jury to see what they want them to see.

Sources of Evidence of Brain Injury

By Randy W. James

By now you have received excellent information on the detection, diagnosis and evaluation of brain damage and the effect of brain damage on the value of your personal injury case. This section is devoted to the types of evidence and order of proof strategies helpful in the effective presentation of your brain damage case to a jury.

Many sources of proof of brain damage have become apparent to you throughout this seminar. Most obvious, of course, is the testimony of health care providers such as neurosurgeons, neurologists, psychiatrists and neuropsychologists. To be certain, this type of expert evidence is the foundation of any effective brain damage case. However, there are several types of demonstrative and testimonial evidence which can be used to enhance your case. Remember, you not only have the burden of proof, but the burden of persuading the jury that your client suffers from brain damage and that the brain damage has a significant detrimental effect on his/her life. Such evidence can be helpful in dispelling the relatively common perception by jurors that experts are "a dime a dozen."

The effective use of demonstrative evidence is essential not only to the jury’s comprehension of your expert’s testimony about brain damage, but to his/her credibility. The principle that visual evidence is more easily comprehended and retained than auditory evidence is well accepted. In a brain damage case, the use of a model human skull and brain is helpful in describing the anatomy and physiology of the brain. Medical illustrations of the skull and brain may also be used, but lack the three dimensional aspect of a model. Medical illustrations are most effective when they are used in combination with demonstrative models and are drawn to depict the plaintiff’s injury. Such illustrations should be in color depicting the plaintiff’s condition at various stages of post-injury treatment and enlarged at least to poster size. Several companies throughout the country specialize in producing these illustrations from a review of the plaintiff’s medical records, x-rays, CT scans and photographs, if available.

These demonstrative devices are not only effective in aiding the jury’s understanding of the plaintiff’s injuries, but are also relatively easy to introduce into evidence. Generally, although the trial court is vested with broad discretion in the admission of demonstrative evidence, models and illustrations are admissible with a simple showing that they are accurate and would aid in the jury’s understanding of expert testimony. See, Fravel v. Burlington Northern Railroad, 671 S.W.2d 339 (Mo. App. 1984); Carver v. Missouri-Kansas-Texas Railroad Company, 245 S.W.2d 96 (Mo. 1952); Bloecher v. Duerbeck, 92 S.W.2d 681 (Mo. 1936).¹ Demonstrative exhibits (particularly anatomical models) are also beneficial because, unlike other evidence, they many times can be used by you in opening statement. Demonstrative exhibits also effectively allow the attorney and expert witness to overcome the formality and rigidity of a "podium/witness chair" examination, wherein the jury may feel left out of the proceedings. With a demonstration that requires the attorney and expert witness to be in close proximity to each other and to the jury, the witness is better able to communicate with the jury leaving it with a sense of involvement and interest that cannot be achieved by words alone.

Other effective exhibits which combine characteristics of real and demonstrative evidence include "Day In The Life" videotapes depicting the plaintiff’s daily routine, pre- and post-surgery photographs and medical records such as x-rays and CT scans. "Day In The Life" videotapes are extremely effective in communicating to the jury the many ways in which brain damage translates into physical and psychological disability on a day to day basis. As you have heard, brain damage can result in a wide range of impairment in all areas of human functioning, many of which may not be readily observable by the jury in the courtroom. A "Day In The Life" video can solve this problem by demonstrating the plaintiff’s disabilities in a manner which could not be demonstrated in the courtroom. While "Day In The Life" videos are gaining wider acceptance throughout the country (corresponding with the trend toward greater use of video in various aspects of trial presentation), their admissibility is unsettled in Missouri. In the seminal case of Haley v. Byers Transportation Company, 414 S.W.2d 777 (Mo. 1967); the Missouri Supreme Court upheld the trail court’s exclusion of films showing the plaintiff engaged in various activities in his home including,

"...the difficult and laborious acts of getting from his bed into a wheelchair, getting out of it, getting into the 'stand-alone', an appliance which supported him and permitted him to move in an upright position, the moving of his legs manually one at a time in order to accomplish bodily movements, this being both done with and without assistance, the taking of weight lifting exercises, and raising himself from certain places and positions by means of an overhead bar."

Id. At 780. Noting that plaintiff’s activities were "described in evidence without objection," and that plaintiff’s counsel did not produce or offer any of the equipment depicted in the films, the court concluded that the films were self-serving hearsay in that "they would have constituted in reality testimony from plaintiff which was not subject to cross-examination." Id.The court also commented that the relevancy of the films was outweighed by their potential to elicit sympathy from the jury. Id. The Haley decision was quoted with approval by the Missouri Supreme Court three years later in McWilliams v. Wright, 460 S.W.2d 699, 705 (Mo. 1970). Unfortunately, the Haley trail ends with McWilliams, both of which were decided in an era less receptive than the present day to the admission of motion pictures. The only case since 1970 to cite Haleyon this point is Bolstridge v. Central Maine Power Company, 621 F.Supp. 1202 (D.Maine 1985). Relying upon Haley to exclude a "Day In The Life" video, the Bolstridge court concluded that such a video "dominates evidence more conventionally adduced because of the nature of its presentation...". Id. at 1203. The court also held that the video was cumulative because plaintiff could testify and demonstrate activities "similar to those depicted in the videotape." Id. at 1204. Consistent with the present view of many courts, however, the court seemed to reject the primary Haley holding that the video was inadmissible hearsay. The Bolstridge court noted that a properly authenticated videotape is much like a photograph and is not considered hearsay. Id. This is a well settled principle in Missouri which indicates that Haley may be distinguishable on its facts because there is no evidence that there was any authentication testimony accompanying plaintiff’s offer of the film. See, McWilliams at 705. Further, several Missouri appellate courts, without mentioning Haley, have upheld the admission of various videotapes, including a "Day In The Life" video. See, Lawton v. Jewish Hospital of St. Louis, 679 S.W.2d 370, 372 (Mo. App. 1984); Roque v Kaw Transport Company, 697 S.W.2d 254, 256 (Mo. App. 1985); Whitman v. Consolidated Aluminum Corporation, 637 S.W.2d 405, 407, 408 (Mo. App. 1982); Golston v. Lincoln Cemetery, Inc., 573 S.W.2d 700, 708 (Mo. App. 1978). In Lawton, the Eastern District Court of Appeals upheld the trial court’s admission of a "Day In The Life" videotape holding that,

"...the film illustrated the impact of the hip injury on respondent’s daily routine. The nature and extent of respondent’s injuries were facts essential to proof of his claims and necessary for the jury’s determination of damages. [Citation omitted]. The videotape provided information essential to a fair jury determination because respondent’s ill health prevented his appearance in the courtroom. Its probative value outweighed any prejudice that might have resulted."

Id. At 372. While Lawton recognizes the admissibility of a "Day In The Life" video, it is potentially troubling in that the court’s affirmance seems to turn on the question of whether the plaintiff was able to testify at trial. The question remains unresolved, but it can be argued, particularly in a brain damage case, that the inability to effectively demonstrate plaintiff’s disabilities in the courtroom even if he is available to testify, is tantamount to the absence cited by the Lawton court.

The common theme among the decisions is that the trial court has broad discretion in admitting or excluding videotape evidence. Typically, as with other photographic evidence, if it can be shown that the videotape will be helpful to the jury on a material issue and is a fair and accurate depiction, it may be admitted without fear of reversal on appeal. As with the models and medical illustrations discussed above, it therefore becomes essential to properly authenticate a "Day In The Life" video through one or more witnesses, including an expert witness along with testimony that the film depicts something which cannot be adequately demonstrated in court.

Even though the admissibility of "Day In The Life" videos is not well-settled in Missouri, the benefit in the full and fair communication of plaintiff’s injuries to the jury that can be accomplished through such a video are worth making a "Day In The Life" video a key element in the presentation of your brain damage case. You can increase your chances of admissibility by taking care to insure that the video fairly and accurately depicts plaintiff’s disabilities (including filming when the plaintiff is unaware of your presence, if possible) and authentication by one or more witnesses who were present at the videotaping or, better yet, actually appear in the video.

Photographs depicting plaintiff’s injuries and course of treatment, x-rays and CT scans, also fall within the category of real/demonstrative evidence that is extremely helpful in proving your brain damage case. As with videotapes, the admission of other photographic evidence rests within the discretion of the trial court. Wood River Pipeline Company v. Sommer, 57 S.W.2d 265, 269 (Mo. App. 1988); Boyer v. Empiregas, Inc. Of Chillicothe, 734 S.W.2d 828, 836 (Mo. App. 1987). To be admitted, however, the photograph must be authenticated as fair and accurate by a "witness who is familiar with the subject matter of the photo and is competent to testify from personal observation." Wood River Pipeline Company, at 269; Annin v. Bi-State Development Agency, 657 S.W.2d 382, 385 (Mo. App. 1983). The admissibility of photographs depicting plaintiff’s injuries and course of treatment is well-settled in Missouri. The Missouri Supreme Court in McWilliams held that such photographs, properly authenticated, were relevant to "plaintiff’s pain and suffering, prolonged hospitalization and other elements of damage which were directly in issue in the case." 460 S.W.2d at 705. Although the potential for prejudice is a concern, the courts have refused to exclude photographs merely because they depict serious injuries. Id. In Higley v. Missouri Pacific Railroad Company, 685 S.W.2d 572, 575 (Mo. App. 1985); the Eastern District Court of Appeals upheld the admission of an "admittedly gory" photograph depicting plaintiff’s "mangled arm taken by the surgeon prior to amputation." The court noted that,

"The photograph was an accurate portrayal of the injuries to plaintiff’s arm, was not enlarged and did not distort or exaggerate the injury. The photograph was relevant to the nature and extent of plaintiff’s injury and to the damage element of pain and suffering sustained by plaintiff while being extricated and prior to amputation. We do not find and abuse of discretion. [Citations omitted]." Id.

X-rays and CT scans are also helpful in depicting the nature and extent of plaintiff’s injuries and are admissible with similar foundation except that because of their technical nature, should be authenticated through an appropriate expert witness. Many times, x-rays and CT scans are more easily admitted because they lack the prejudicial concerns of injury photographs. The use of x-rays and CT scans is particularly important where injury photographs are not available. In addition, they also aid in your expert’s testimony regarding diagnosis and treatment of plaintiff’s injuries.

While it is clear that CT scans may depict organic brain damage, you may be asking, "How are injury photographs and x-rays relevant to proof of brain damage?" Certainly, such evidence does not either quantify or qualify brain damage to the extent that the testimony of a clinical neuropsychologist can, but remember that you must persuade the jury that brain damage occurred. Injury photographs and x-rays showing extensive head trauma will enhance the credibility of your claims. Likewise, lay witness testimony describing the occurrence and the plaintiff’s condition can also be used as a persuasive tool in proving brain damage. For example, a witness to the occurrence may describe an explosion as sounding like "mortar fire in Vietnam." Another witness may testify that the plaintiff was "thrown backwards ten feet and the shirt was torn from his body." Both of these examples describe an occurrence with such violence that the jury is more easily persuaded that the plaintiff must have suffered some sort of brain damage. This is particularly important where the effects of the brain damage are less demonstrable, i.e. where the damage manifests itself in the form of higher abstract cognitive function which is less apparent than loss of gross motor function such as hemiparesis.²

Diagnosis and evidence of brain damage may also provide you with order of proof strategies that will enhance your chances of success. Many times the plaintiff is called as the first witness at trial. The reason for doing so is sound because it allows the jury to more quickly acquaint itself with the plaintiff and it can be reasonably assumed that the jury is anxious to hear the plaintiff’s testimony. In a case where the plaintiff’s testimony is sound and the facts of the occurrence are not potentially detrimental, it is advisable to have the plaintiff testify early in the case. Also, depending on the facts of the case, you may have no choice but to call the plaintiff early in the trial, i.e. where the plaintiff is a key chain of custody witness. If, however, you have problems with the plaintiff’s testimony and he/she is not a necessary "lead off" witness, it may be advisable to present most, if not all, of your brain damage evidence before calling the plaintiff to testify. In all fairness, it may be that many of your problems with the plaintiff’s testimony arise from his/her brain damage. In any event, the jury is likely to view the plaintiff’s testimony in a much more favorable light after hearing your brain damage evidence than before.

Aside from order of proof strategies, the tougher question in a brain damage case is whether to call the plaintiff to testify at all. In cases of mild or extremely severe brain damage, the choice is easy. In mild cases, you probably have to call the plaintiff to testify. Conversely, in cases of extremely severe brain damage, the plaintiff may be unable to testify. In the middle range where the plaintiff may have suffered serious brain damage but retained cognitive function, you may choose to have him/her testify as another means of demonstrating their injury to the jury. You may find that even where the testimony is somewhat detrimental or that because of the brain damage the plaintiff is uncontrollable, that the jury will rely less on what the plaintiff says as to how he/she says it. This, of course, is a decision that must be made on a case by case basis, and is subject to a variety of factors.

In conclusion, this discussion is intended to illustrate various sources of evidence of brain damage and is by no means exhaustive. As you evaluate and develop your brain damage case, you will probably think of other types of evidence which when considered in combination with one another not only meet your burden of proof, but aid in jury persuasion. It is important to remember that brain damage as an element of damage is often more difficult for a jury to grasp and value than a purely physical injury, particularly in cases of mild to moderate brain damage. That is not to say, however, that the brain damage is a small element of damage. To the contrary, because of its profound effect on all aspects of human life, brain damage will greatly enhance the value of your case as has been described throughout this seminar.

Footnotes

¹ With medical illustrations, it is important to obtain a preliminary draft and show it to the treating physician to confirm its accuracy or to make needed revisions. Some companies submit preliminary drafts for revisions as a matter of course. Others will make a final illustration unless a preliminary draft is requested. This practice will not only save expense but will insure the accuracy of the exhibit. ² Various types of demonstrative evidence are listed in Appendix "A" along with corresponding witnesses for authentication purposes.

Appendix A

Exhibit EvidenceWitness "Day In The Life" video Neuropsychologist Therapists Family Medical IllustrationsNeurosurgeon Neurologist Neuropsychologist Photos (pre- and post-surgery)Neurosurgeon Neurologist Plastic Surgeon Model SkullsNeurosurgeon Neurologist Neuropsychologist X-rays/CT scansNeurosurgeon Neurologist Neuropsychologist