Modern medicine saves many who years ago would have died as a result of catastrophic injuries.  Sometimes the resulting situation may not be clearly better than death itself.  Only through an adequate award will life have any positive meaning for many profoundly injured people.  These individuals live in a complex state that is incomprehensible to many lay persons and even attorneys.  Counsel representing such plaintiffs must visit the homes of their clients and the specialized treatment centers.  Counsel should get to know the specialists who devote their lives caring for the needs of these clients.  These witnesses are vital to help illustrate not only the damages suffered by the patient but also the future benefit such centers offer the patient in long term care and recovery.  The sad and negative aspects of recovery will take care of themselves.  It is imperative to show the extent to which the client is working for maximum recovery.  Minor accomplishments are monumental achievements for the catastrophically injured.  Testimony from treating physicians, therapists, staff and a life care planner reveal the intensive and time-consuming treatment, care and rehabilitation devoted to helping these deserving people travel the road to maximum recovery.  The absolute inability of family members to adequately care for such patients is made clear by this type of testimony and evidence.  Demonstrative evidence must be employed at trial to show the client’s severe limitations, as well as the client’s dedicated effort to do his or her part to achieve maximum recovery.

Counsel must do more than listing the activities the client could do before the event and comparing them to today’s activities.  There is much more to do than asking the treating physician to quantify the percentage of permanent disability; it means more than compiling the client’s medical bills.  You must be aware of and acutely understand the conscious suffering of your client, your client’s life before the injury related to life after, and the necessary long term rehabilitation, care and treatment of your client for the entire life expectancy.  All available testimony and documentary evidence should be used to paint a persuasive picture in order to open the minds of the jury to an acceptance and appreciation of what your client will endure. 

Cases involving catastrophic injuries present certain common problems in teaching the jury.  Justice for the catastrophically injured is especially related to high general and special damages.  It is not possible to take a seriously injured plaintiff and make him whole with mere dollars.  That having been said, I have been privileged on several occasions to see just what an adequate monetary award can do to return meaning and purpose to a family devastated by a catastrophic injury.  With injuries such as profound brain damage and quadriplegia, all the gold in Fort Knox will not make the plaintiff whole, but our job as lawyers is to do the best we can to provide all the civil justice system can do to address the consequences of carelessness.  If we remind ourselves of the difficulty of our task in making an injured person whole, we will focus more on the development of damages from the beginning to the conclusion of our case.  There are common problems we all face in our quest to secure justice for these deserving individuals and their loved ones. 

II.  THE PROBLEMS

       A.  THE FIRST PROBLEM:  THE JURY 

Big damages, big case, big money, equals big problem.  Before educating a jury about the nature of your client’s plight, a fair and balanced jury must be chosen.  Catastrophic injuries often require a large sum of money in order to properly treat and care for the injured.  Some jurors, no matter the severity of the injuries, are simply unwilling to award a significant amount of money.  Before educating a jury, it is imperative to excuse all the “STINKERS”.  One bad juror can doom the trial to an inadequate award.  Two bad jurors guarantee a bad result.  No teacher can really educate an unwilling student.  A case of catastrophic injury demands a large award and this in and of itself presents a looming problem.  Many people today would find for the defendant on liability to avoid being a part of a significant monetary award.  

 When one considers the well financed, well orchestrated campaign against the injured and their lawyers it has been made even more difficult to find jurors who are not concerned about the “litigation tax”.  They have even put a number of $845.00 per person on their vile propaganda.  We have lost the battle in the court of public opinion.  The war rages on.  Over thirty-five years of pounding by the “tort reformers” and the current charge led by no less a figure than the President of the United States of America has taken its toll on jurors everywhere.  If you practice in a state where legislative “tort reform” has not yet become law, you may think your clients have not yet suffered great erosion of their right to just and adequate compensation.  Think again!  It would be a rare individual called for jury service who has not been pressured by the enormous and unrelenting campaign financed by the true “evildoers”. 

 In order to hope for justice, counsel must strive to find people comfortable in dealing with the figures it takes to make the plaintiff whole.  The size of the award sought must be mentioned in voir dire.  If counsel is not clearly comfortable in addressing a very large, if not huge, figure, how could you expect jurors to deal with such numbers?  Jurors must appreciate the need for the money and what it will do.  A significant award will permit the plaintiff to obtain costly treatment and rehabilitation and will allow the survivor of a catastrophic injury to begin reconstructing the life forever altered by the defendant.  Only if the jurors are capable of dealing with a large amount of money will the trial have any meaningful chance of success.

            B.  THE SECOND PROBLEM:  THE CLIENT  

After almost forty years in the courtroom, I think I have finally come to appreciate the fundamentals of defending against our cases.  My practice has always been an offensive game and that has taken so much focus, little time was available for the luxury of considering how the case might be defended.  There appears to me only two basic defenses: (1) The plaintiff is not entitled!  This traditional approach is designed to show the defendant was not careless or if so not causally responsible for the injury.  (2)  The plaintiff is not deserving of the verdict.  This is almost impossible to deal with at trial.  Case selection in this environment may leave many deserving, injured people without redress.   Prior convictions, prior lawsuits, bad personality traits, family problems and negative work history can create monumental problems.  Drunks in the road, mothers who have undergone abortions, personal appearance and language difficulties are all negative factors which must be considered.  Any lawyer who thinks prejudice is not alive and well in America has not seen many jury trials.  In catastrophic injury cases, much of the value of the case is attached to the quality of life of the injured before the injury.  When we take on a client, the client comes with a complete history that can help or hinder the proof of general damages.  The entire case must be individualized to clarify the fact that the defendant must be responsible for the damages they have done to this individual. A deserving client who has been injured by an arrogant defendant goes a long way toward a substantial recovery before you even get to the facts.  The reverse is also true. 

 You should come to know as much as possible about the client through the screening process in case selection.  The importance of the likeability factor cannot be overemphasized.  Claims adjusters and defense counsel seldom seem to realize the pivotal force of the likeability factor.  The positives and negatives of your client will come out at trial.  You must do your best to illustrate and focus on the positives while diminishing the negatives. You must get to know your client.  Surprises at trial can prove fatal.  A nolo plea followed by first offender treatment is understandably something the client may have believed did not constitute a criminal record.  An answer of “no” to an interrogatory seeking to determine if the client has ever been arrested, would make otherwise irrelevant evidence admissible.  Good trial lawyers can handle almost anything in trial other than a successful attack upon the client’s credibility.  

Having determined there are no insurmountable skeletons in the client’s closet, considerable time should be devoted at trial in educating the jury about the client before the injury.  Testimony from lay witnesses and demonstrative evidence can assist in personalizing the plaintiff.  Witnesses must describe the client and his or her life with sufficient detail so the jury comes to know, like and admire the client.  That is the challenge of the case.  The demonstrative articles which show activities of my clients before injury that we have introduced at trial would fill up a small truck.  These items speak volumes about the client in better days. 

          C.  THE THIRD PROBLEM:  THE EXPENSE 

            The careful advocate can spare no expense in presenting the case which calls for a very large verdict.  Economists, engineers, life care planners, treating health care providers, and demonstrative aids do not come cheap.  An adequate budget must be determined and funds must be available for full pursuit of the case.  The defense will take advantage of any sign of financial weakness.  The plaintiff must have staying power in order to withstand the temptation to settle for a less than adequate amount.  Even a case of clear liability will require the expenditure of substantial sums in order to secure a just result.  Today, proper presentation of the damages in a case for the catastrophically injured client can easily exceed fifty thousand or even a hundred thousand dollars.
 

            D.  THE FOURTH PROBLEM:  PRESENTATION OF THE CLIENT 

            Great care must be taken to avoid over exposing the client to the jury while making sure the jury sees enough.  Jurors understand the need of the profoundly injured client to be elsewhere during the trial.  Therapy, rest, and difficulty of showing up are all recognized and appreciated reasons for a client’s absence from daily attendance at trial.  I have read of good trial lawyers recommending that a client’s injuries never be shown “in the flesh” but only by photographs or video.  Mel Belli taught me otherwise many years ago.  If done properly, with great attention to decorum, nothing can equal the persuasiveness of the real thing.  For example, the client can be located in an ante room and placed upon a stretcher or hospital bed with an attendant dressed in a nurse uniform. Once appropriately draped, the jury can be permitted to pass the client single file with only the judge in the room.  When my severely deformed client who had lost all the skin and fascia from an entire side of her chest and abdomen told me of feeling a juror’s tear fall upon her body, I sensed we would do ok in that trial.  I believe clients have an absolute right to have the jury see their injuries, but great care must be taken to expose the client in the most delicate manner.  If counsel doubts the ability to carry this out with respect, then photos will be the best way to present the injury.  Here are some examples of introducing the catastrophically injured client:  

1.  Rex Jones arrived at a metropolitan Atlanta hospital one Saturday morning with clear symptoms of an impending stroke.  After ruling out a bleed or hemorrhage type of stroke, he was admitted with an order from the attending neurologist for an “MRI today or in AM”.  It being a holiday weekend, the MRI was not done until several days later and not read even then.  The day following the MRI, Rex suffered a massive occlusive stroke in his basilar artery leaving him “locked in”.  He could no longer move any part of his body other than his right eye.  Up meant “yes” and down meant “no”.  We brought Rex to court and called him as a witness and focused a video camera on his face and on the screen every juror could see for themselves how Rex understood even the most complex questions.  However, all he could do was respond with an up or down movement of his right eye.  He returned to sit through the summations.  I thought we were in pretty good shape with the jury when an elderly gentleman on the first row reached over and gave Rex a pat on his arm. 

            2.  The best direct examination I have ever seen was one done my son, Adam, in the trial brought in behalf of a profoundly brain injured child who suffered as a result of a delayed caesarian section.  Dalton Tate was three years old at the time of trial.  His treating pediatric neurologist was qualified and asked if an examination of Dalton would be helpful in explaining his findings and opinions to the jury.  He was also asked if there could be any possible negative impact upon Dalton by conducting this examination in the presence of the jury in the courtroom.  After assurance there would be absolutely no harm to Dalton as a result of such an examination, counsel table was cleared and draped with a quilt.  The very caring doctor came down from the stand and with mom’s help the examination proceeded to show not only Dalton’s limitations but also his clear drive and determination to do his part. 

            3.  Dal Baker was a top sergeant, two weeks from retirement from the United States Marine Corps when an eighteen wheeler crossed the median of the divided four lane highway and collided with his car, killing his wife and taking substantially all of his mental ability.  Dal would never again live without around the clock assistance.  We flew him by lear jet to Atlanta from the Brown School in Austin, Texas for a 3 minute appearance before the jury.  While that testimony may have been the most expensive I have ever seen, it was perhaps the most powerful.  During the testimony of his treating neuro-psychologist we asked if bringing Dal to the courtroom would in any way harm him.  After assurance that it would not, we asked the doctor to introduce Dal to the jury.  Dal’s attendant from the Brown School brought him into the courtroom and the doctor introduced him and asked him if he would like to say hello to “his jury”.  Dal stood before the jury and greeted them.  He then gave clearly inappropriate responses to a few questions.  Dal left the courtroom after this brief visit and did not appear again.
 

III.  CONCLUSION