By: Thomas William Malone
MALONE LAW OFFICE
Two Ravinia Drive, Suite 300
Atlanta, Georgia  30346
Bus (770) 390-7550
Fax (770) 390-7560
www.malonelaw.com 

I. INTRODUCTION: GENERAL PRINCIPLES OF BRAIN INJURY 

            Plaintiff's lawyers must lay the groundwork for proving this type of injury early in the case, both in voir dire and opening statements, to defend against defense tactics arguing that negative results of various imaging techniques indicate that there is no injury present.  Plaintiff's counsel must explain that the absence of positive findings on such scans does not prove lack of injury.  In order to defend against the arguments that brain injury clients are malingerers, psychosomatic and fakers, Plaintiff's counsel must depict the injury by describing pre-injury activities and daily life of the client; the facts pertaining to how the injury was acquired; expert testimony explaining the science of the impact of such trauma; and post injury status and activities.   

II. OPENING STATEMENT 

A. Importance of Opening in Brain Injury Cases

            Unique opportunities are presented in opening statements of traumatic brain injury cases.  No litigator should underestimate the importance of opening statement because in most trials by the time opening statements have ended jurors have made up their minds which side should win.  One key to remember in any brain injury case is that there is no such thing as a mild to moderate brain injury.  Any brain injury is major, if it interferes with activities of daily living. 

            The basic principles involved in a successful opening statement for the traumatically brain injured plaintiff are no different from those involved in presenting the case of any catastrophically injured person.  Much care should be employed in the selection of the jury.  Since the brain injury produces often-seen subtle difficulties which can devastate a life, the jury should be composed of persons capable of appreciating the full impact of such subtleties upon the enjoyment of life.  Such cases frequently involve the loss of use of higher brain function while leaving intact the basic ability to function in day-to-day living.  The opening statement should be directed to a composite of people who experience and appreciate higher brain function.  The opening statement is the opportunity for counsel to bring clarity to the thoughts and confusion created during the voir dire process.  This opportunity should not be wasted on mere rhetorical gymnastics but should continue to shape attitudes about the validity of the case, the reasonableness of your client's actions, the devastating effect of the injury, as well as the key legal determinations of the case.               

            Plaintiff's counsel must highlight experts' credentials, inform of the basic premise of each field of expertise, i.e., explain in general terms what a life-care planner or rehabilitative counselor does for the plaintiff.  Counsel must also make the jury aware that these experts will explain the science of the injury, the technical process of the injury, and the medical and rehabilitative needs that have already been encountered and which can be expected in the future. 

Further, it is critical to let the jury know that lay witnesses (friends, employers, co-workers, preachers and close family members) are best able validate the changes from pre-to post-injury status.  They will show how the plaintiff's life has been altered.  They can verify that physical and mental impairments have had a substantial impact upon their relationship with the plaintiff.  They are often able to report symptoms of the brain injury as it affects their own daily lives; they may confirm psychological deficits which are the landmarks of brain injury; and they can often discuss these symptoms in lay terms which the jury can appreciate and understand, such as changes in mood, characters, and mental condition as compared with the pre-injury condition. 

            The fundamental principles employed in making an effective opening statement in any case of serious injury are equally applicable to the case of the traumatically brain injured plaintiff.  Counsel must maintain credibility and cause the jury to understand the devastating effect of a subtle brain injury.  The trial advocate is seldom faced with any greater challenge than to cause a jury to fully appreciate the devastating nature of a traumatic brain injury and the impact such an injury can have upon the enjoyment of life.  The jurors' appreciation of the effects of such an injury is greatly enhanced when the opening statement is presented in a narrative format and linked with the use of demonstrative aids.  The opening statement is the opportunity to open the door of juror reception to the information and argument to follow.   

B. General Points On Opening

1. Basic Techniques and Etiquette

            The opening statement not only imparts counsel's view of the case to the jury, but it also serves to build a relationship between counsel and the jury and to place an image of counsel before the jury.  Counsel seeks to gain the jury's trust so that later during deliberations the jury will trust and rely upon the arguments and statements which counsel has made to them.  Also if the jurors like and are comfortable with plaintiff's counsel, they are more likely to like and be comfortable with the plaintiff.  Counsel should strive during the opening statement to appear courteous, credible, and worthy of trust.  There is no more important element to any trial than credibility!

            Peter Perlman in his authoritative book Opening Statement (ATLA Press, 1990) has outlined several practical suggestions which provide a solid foundation for the presentation of any opening statement.  Peter's Principles help to evoke the positive image necessary to gain the confidence of the jury:               

1. Always keep your promises to the jury.  Never say you will prove something unless you are absolutely certain that you can.  If evidence supporting a claim might be excluded or subject to a court ruling, don't make the claim.  Exaggerations by counsel will become an albatross around the neck which will ripen as the trial progresses. Credibility can be lost by one broken promise, so do not overstate your case.

2. Do not comment on anything that may not be admissible as evidence.

3. Explain or minimize any weaknesses including evidence that will be harmful to the plaintiff and cannot be otherwise explained.  Only an honest advocate will admit to weaknesses in his case.

4. Explain technical terms, the nature of expert testimony, and trial procedure generally.  This allows the jury to become more comfortable with the trial process and the key terms which will be used during the trial and which will be contained within the jury charge.

5. Speak in plain English and avoid legal references.  Again this will increase the jury's comfort with the trial and with you as a reliable source of information.

6. Always begin with "May it please the court."  Courtesy and respect for others are qualities jurors notice.

7. Show that you are a positive person by using positive action words and avoiding disclaimers since they indicate uncertainty.  Try to end the opening statement on a high note.  Jurors are more likely to respond to an optimistic positive personality.

8. Be yourself and be sincere; jurors can almost always notice an act for their benefit or nervousness.

9. Project the honest belief that your clients are right and deserve to win.  If you don't believe in your case, no one else will.

10. Organize your opening statement with an outline.  If you can't organize your thoughts, a jury cannot do it for you.

11. Develop a theme and give the jury a statement of purpose; this is important to the use of a narrative format.

12. Use demonstrative evidence.  Remember--a picture is worth a thousand words. (Obtain court approval of the utilization of demonstrative aids prior to the opening statement.)

13. Ask to exclude the witnesses from the courtroom.  This prevents their testimony from being tainted by the opening statements and projects that you seek a fair and honest trial.  It also prevents witnesses from reacting to your opening statement in their testimony. 

            Just as there are practices that should be followed during an opening statement, there are also practices which should be avoided since they detract from your image as courteous, credible and trustworthy.  These are some of them:  

1. Do not address a juror by name.  This practice implies a familiarity with a juror which does not exist and may offend some jurors.

2. Do not refer to results in some other case or a former trial in the same case.  This information is irrelevant and possibly prejudicial to the current trial.

3. Do not refer to evidence excluded by pretrial rulings, hearsay evidence or matters outside the evidence.  This can easily lead to reversal on appeal.

4. Do not refer to liability insurance.  This can also constitute reversible error in many situations.

5. Do not use a medical or other learned treatise or read from a law book or statute.  This practice can confuse or bore jurors.

6. Do not appeal to any juror's self-interest.  This singles out a juror and implies that he or she may be selfish or greedy.

7. Do not refer to the financial status of the parties unless it is allowed to be considered for purposes of imposing punitive damages.

8. Do not use the "Golden Rule" argument, that is, asking jurors to place themselves in the shoes of the litigants; do not use any statement whose purpose is primarily to appeal to sympathy, or to incite passion or prejudice.

9. Do not argue or attack opposing counsel or the judge.  This type of contention with others is more likely to make you look impolite and discourteous than tough and vigilant.

10. Do not relate the testimony of each witness.  The witnesses will have a chance to speak for themselves.  This also tends to bore the jurors.

11. Do not try the case on only one issue.  This strategy involves to much risk to be successful in the long run.

12. Do not use technical, legal, or medical terms.  This ploy tends to confuse jurors and makes them less comfortable with you.

13. Do not display exaggerated legal, medical, or oratorical skills.  You are not Cicero or Demosthenes!

14. Do not be a comedian.  Humor is rarely appropriate in an opening statement, and you are never as funny as you think you are. 

15. Do not make excuses or play on lack of experience.  This is clearly not helpful in getting a jury to accept your view of the case.

16. Do not treat the case or the issues routinely.  Although this may be your hundredth case, it is quite likely the first for your client and the jury.  If the jury perceives that you do not care, they probably will not either. 

            These practical suggestions form the basis of good conduct before the jury during the opening statement and throughout the trial.  When these elements are mastered, it is easier for you and the jury to concentrate on what is important in the case.  The key to conveying what is important in the case and focusing the jury on a favorable resolution of the case is the use of a narrative format in the opening statement.        

2. Use of a Narrative Format

            The plaintiff's lawyers speak to the jury first.  This is an important advantage since jurors tend to remember what they hear first.  As a result, plaintiff's counsel gets to present the first and best retained view of the case to the jury.  This opportunity should be used to provide jurors with a structure and order from which the case should be viewed and considered.  In other words, plaintiff's counsel should give the jurors a frame of reference or context of understanding within which their deliberations can proceed.            This context for understanding the case from the plaintiff's viewpoint is most easily provided through the use of the narrative format. 

            Jurors like most Americans receive most of their information, both news and entertainment, through television.  Television in both entertainments, such as dramas and situation comedies, and news programs, such as 60 Minutes or 20/20, provides the viewer with information in a narrative format.  This is a format which jurors are comfortable with and trust to accurately convey information to them.  Also since this format simulates their regular method of receiving entertainment, jurors may be more attentive to counsel. 

            In a narrative format, one party is identified as the protagonist (plaintiff) who is faced with an obstacle, such as an injury, and an antagonist who causes that problem (defendant).  Jurors through prior experiences with narrative formats are conditioned to identify with the protagonist and to expect to see the protagonist's difficulties favorably resolved. The very formula of the narrative format encourages a verdict in the plaintiff's favor.  The adversarial nature of the trial system also lends itself to the identification of one party as a protagonist and one party as an antagonist.  If counsel can successfully portray the plaintiff as a protagonist, juries will normally seek to resolve the narrative presented to them in the plaintiff's favor.  Jurors would rather "write" a good ending to the plaintiff's story than a bad ending.

            The use of a narrative format is also helpful in organizing the information about the case for a jury.  The use of a story-telling approach to the opening statement quickly shows what information is and is not important for an understanding of the case.  The narrative format also fits in with the limited attention span of most jurors.  The normal American has an attention span of approximately 22 minutes which not surprisingly is the length of the average situation comedy or 60 Minutes news story.  When the view of a case is packaged in a story-telling fashion it is more likely to be of a length acceptable for the jury's attention span.  When this narrative is presented near the beginning of the opening statement, it will fill the span of the normal juror's attention.       While the use of a narrative format is a powerful tool for guiding the jury's view of the case in a subtle manner, it is also one which is underutilized.  Many practitioner's have trouble reconciling the abstract rule-based nature of the law and jury instructions with the specific story-based nature of a narrative format.  There is no need, however, to reconcile the two types of thought.  While rules of law determine the standards for liability, the ability to present an engaging narrative determines whether a jury will find those standards to have been met.              

3. Use of Demonstrative Evidence

            Psychological studies have shown that when a combination of verbal and visual information is employed, the information is retained far longer than when either method is used alone.  Each form of stimuli tends to reinforce the other form. The effectiveness of combined verbal and visual stimuli should come no as no surprise given the popularity of television and movies in our society.  Counsel should take advantage of the jurors' ability to easily comprehend and process mixed verbal and visual information by making the use of demonstrative evidence part of the opening statement. 

            The first step in using demonstrative evidence is determining what type of demonstrative evidence should be used.  Since jurors are pre-conditioned to trust and accept information presented to them on a television screen, images projected on such a screen tend to be the most effective.  Videotapes and visual presenters are most often used to present such information.  The use of these aids, however, has some drawbacks.  This type of evidence is dependent upon its supporting technology, and if a courtroom cannot support the technology, such evidence is useless.  These items are also subject to breakdowns which can destroy their usefulness.  Also certain types of tele-evidence, such as accident reconstructions and computer simulations, can be prohibitively expensive.  Nonetheless, where this type of evidence is available and appropriate, it should be used.  Its impact upon a jury is dramatic and oftentimes indelible. 

            Even where such tele-evidence is not available other forms of visual presentation should be utilized to reinforce what is said during the opening statement.  Posters, charts, blackboards, and simple models help to present complex verbal information in easily understood forms such as pie and bar graphs and timelines of events.  No opening statement should be presented without utilization of some reinforcing element of demonstrative evidence where permissible. 

            In addition to reinforcing retention of the information presented during the opening statement, the use of demonstrative aids serves several other purposes.  The presentation of the exhibits and visual aids early in the trial allows the jury to anticipate their use during testimony, and allows them to become familiar with the aids and learn to rely upon the information contained within them.  The use of such demonstrative tools shows the jury that you are helping them understand the case.  It also signals that this case is an important one since the exhibits require thought and preparation prior to trial.  Finally, if you do not use even simple visual aids, you allow your opponent the opportunity to place you at a disadvantage through their own use of demonstrative exhibits during opening.  The jury is searching for a leader.  Let it be you! 

            In short, opening statements utilizing demonstrative exhibits are more likely to be remembered by the jury and are more likely to favorably impress the jury. 

III. SUMMATION 

It is my belief that only the closest of cases can be won or lost in summation.  However, summation is the opportunity for bringing together an understanding and full appreciation on the part of the jurors of the plight now facing the client and his or her family as a result of the carelessness of the defendant.  In summation for brain injury cases, one must educate the jury about the injury and all of the resulting effects.  This is also an opportunity for maximizing damages!  In the paragraphs that follow, I share some insight into my practice in the courtroom. 

A. Structure and Function of Advocacy

            The trial lawyer must have a comprehensive understanding of the facts of his or her case, as well as a thorough knowledge of the law.  The advocate must be able to marshal the evidence in a logical and persuasive manner and create an intense verbal and visual image which is understandable and believable. 

            We must remember that visualizing a traumatic event may not be easy for many people, including jurors.  As practicing attorneys, we have been exposed to a continuing barrage of suffering and turmoil.  After a while, we almost feel the pain, the uncertainty, the despair of helplessness that accompanies an injury.  We may become “accustomed” or even somewhat hardened to the tragedy that our clients suffer.  It is crucial to remember that most jurors do not share this experience.  Thus, the artful persuasion of counsel is required in order to paint a picture so that they can visualize the events and the significance and the impact they have on your client.  How do we do this? 

B. Delivery

            Delivery of the summation is most important.  Counsel should change the pace and tone to heighten interest and maintain attention.  Because people tend to retain more of what they hear and see as opposed to what they only hear, it is important to have your evidence and demonstrative aids ready in order to display them to the jury in an organized presentation as the story unfolds.  Counsel should move about the courtroom in a natural manner and the delivery should appear spontaneous.  However the presentation is made, it should be planned in advance so it proceeds smoothly without fumbling for notes, exhibits, or demonstrative evidence.  The most effective summation is one appearing to be spontaneous and which flows smoothly, naturally and dramatically to a forceful conclusion. 

            Anchoring is a technique worth considering.  Stake out a particular location early in the trial whenever a significant point is made.  Whenever addressing the same point, return to that location, whether during the examination of a witness or in summation.  The jury will begin to anticipate the subject matter about to be addressed whenever you return to that location. 

            When addressing the jury, speak plainly and down to earth.  Mimicry is to be avoided.  Each attorney must find his or her own style.  The summation is the time to put the case in perspective.  Explain the case in familiar language and in simple terms, stressing the use of common sense.  Never underestimate the expertise of jurors in the area of common sense.  Absurd or transparent arguments or positions irritate and inflame modern juries.  Trial counsel must maintain credibility at all costs.  Jurors recognize misstatements as well as pure foolishness and will accept neither.  Maintain credibility at all costs! 

            Jurors bring with them to the courtroom their years of personal experience.  As human beings, jurors are biased and prejudiced.  No juror is totally free of sympathy, prejudice or human emotion.  Counsel must be aware of the role these emotions play in the outcome of any trial.  Our role is to maximize those prejudices existing for our client and to minimize or remove those prejudices existing against our client. 

C. Responsibility of the Jury

            Begin by addressing the Court and the jurors as a show of respect, reminding the jurors of their oath and promises made during voir dire; that each would do justice without prejudice to any party.  Reminding jurors of their answers and emphasizing answers as being promises brings a sense of honor and commitment to their word.  Counsel should discuss the promise he or she made at the beginning of the trial, to prove his or her case and in return, the jurors made a promise to do justice if the case was proven.  A bond has been created between counsel and the jury.  The jurors are now being asked to fulfill their part of the bargain. 

            Discuss the responsibility lawyers have to look after the plaintiff and the passing of that responsibility to the jury.  The jury serves as judge of the facts and credibility of witnesses.  Having heard and seen the evidence, the jury must now pass judgment.  The jury is the collective conscience of the community.  Together they can accomplish all those tasks which no one of them acting alone could handle.  The unanimous jury must render the final verdict.  The jurors should understand appeals exist to correct errors of the judge.  There is no appeal if the jury errs. 

            The jury has an obligation to do justice and each juror is committed to listen to the facts and apply the law to those facts regardless of personal feelings.  The plaintiff does not require sympathy as part of their verdict and the judge will charge that the verdict cannot be based on sympathy.  Jurors need to be proud of their role, appreciate their power and know that they are the most important part of our system of justice. 

            During the opening statements and again in the summation, I tell the jury that my clients have relied on me to do the very best I can do and they have put their trust in me to present their case to the best of my ability.  If I have done anything during the trial to offend any of the jurors, I ask them to hold it against me and not my clients.  I want to impress upon the jurors that ever since my client walked into my office, the fate of their case has rested solely with me.  But once the closing arguments have concluded, the fate of my client will be passed from my hands to theirs. 

D. Assist the Jury

            Jurors want to comprehend the facts and any assistance toward that end is usually appreciated.  Expert witnesses are there to be of assistance to the jury.  The cost of professionally prepared demonstrative material is money well spent, so long as it is not overdone or too "slick".  Maintain credibility at all cost! 

            When presenting a catastrophic personal injury or wrongful death case, use photographs, personal items, awards, and certificates of achievement as documentary evidence individualizing the person in question.  We refer to these as “footprints of life”.  Once these items are entered in evidence, use them during your summation.  Don’t be afraid to take time during the summation to go over this type of evidence. 

            Counsel should stress the plaintiff's enjoyment of life and happiness so the jury can come to know the plaintiff as a unique individual.  Symbolism and analogy are other means to assist counsel in personalizing the plaintiff.  This is very helpful when discussing damages. 

E. Arguments

            Assuming a strong liability case, a clear division should be made between the discussion of liability matters and the discussion on damages.  Common sense suggestions can be used to illustrate the reasonable standard of care.  The opening part of the summation should also include a few thoughts on damages in order to provoke a response from the defendant's counsel.  Many arguments which would otherwise be improper and might invoke the wrath of the trial judge are proper and permitted when made in response to a door which has been opened by opposing counsel. 

            A plaintiff must justify his demand for money damages, but never apologize.  Unless exemplary damages are sought, the plaintiff should not ask a jury to punish the defendant, but rather request that they make the plaintiff whole.  Asking the jurors to send a message to the defendant and to the world is improper, but asking them to send a message to your clients that there is justice in this society, I feel is appropriate. 

            Remind the jury that their enlightened collective conscience determines the general damages in the case.  Counsel should only make suggestions as to verdict amount.  If the jurors are to appreciate their sovereignty to the extent of being able to assess responsibility against another, it seems presumptuous to state a verdict amount with certainty.  The jury should be instructed with regard to the components of their verdict such as pain and suffering for the past and future, past and future loss of income, and past and future medical expenses.  In my opinion, there is no valid mathematical formula for any approach assessing intangible aspects of a human being's life. 

            When discussing future damages with the jury, I try to remind them of how society values money in this day and time.  A million dollars is worth a whole lot less than it was many years ago and it will be worth a whole lot less in the years to come.  Look at what a CEO of a big company makes in one year and what professional baseball, basketball and football players make in one season.  Look at how much someone is willing to pay for a baseball hit by Mark McGwire or how much they will pay for a famous painting.  Once you remind jurors of how society values money, the amount you ask them to place on the pain and suffering your client will have to endure for the remainder of their life will not seem so out of proportion. 

F. Discussing the Law

            Counsel should emphasize that strict application of the law to the facts will lead to a verdict in your client's favor.  Remind the jurors to put away any personal disagreement with the law and apply the law to the facts.  Do not hesitate to discuss the principles of law which will be charged.  Caution should be exercised in discussing the law involved or opposing counsel will surely remind the jury that the law should come from the court.  The discussion should clearly demonstrate counsel is not attempting to charge the jury on the law of the case, but merely amplify and explain in an effort to be of assistance.  The jury will appreciate further detail and explanation of complicated legal concepts to avoid any misunderstanding. 

            Counsel should know the law which will be charged.  Explain the merits and relationship to the language of the charge.  If possible, use the phraseology of the court in explaining legal principles.  What could be more credible than counsel and the court using the same words to explain a legal principle?  Remember, maintain credibility at all costs! 

            Foreseeability, proximate cause, and burden of proof are all difficult for the jurors to comprehend.  Explain these principles so they are put in perspective.  Preferential defense charges cannot be ignored.  The burden of proof and the preponderance of evidence must be clearly explained. 

            When special interrogatories or a form verdict is used, the form should be enlarged and counsel should address the form and explain the effect of each blank and each question.  Counsel should further tell the jurors, in no uncertain terms, exactly how the form should be completed.  Never take for granted the jurors' comprehension of the form. 

G. Summation Excerpts 

a) Tate v. Clark-Holder Clinic, et al.

            Taken from the trial summation in Tate v. Clark-Holder Clinic, et al., Superior Court of Muscogee County, Columbus, Georgia, C.A.F.N. SU01CV2528 (2002); $12,000,000.00 verdict representing compensatory damages for a severely brain injured child who suffers from hypoxic ischemic encephalopathy, including cerebral palsy, seizure disorders, and global developmental delays as a result of an untimely cesarean section and mismanagement of labor by a nurse midwife and an obstetrician. 

1. The Wise Man

            Your role is not at all unlike the role of the old wise man.  The wise man had two little ruffian boys come and see him.  Them little old boys knew that he was the wisest man in the community.  And they came to him, and they had trapped a bird.  And they had this bird in the palm of their hands.  And they said, wise man, you're so wise, tell us, is this bird alive or is this bird dead?  Well, being wise as he was, he looked at the little old, redheaded boys, and he said, Boys, I know that if I say the bird is alive, you'll surely crush the life out of that bird.  If I say the bird is dead, you'll open your hands and let that bird fly free.  So all I can say to you, the wise man said, as I'm going to say to you, ladies and gentlemen, the answer to the question is in your hands. 

            We trusted you.  We'll continue to trust you.  And all of us will await your fair verdict, whatever the amount is, and that's going to be the difficult decision that you have to make.  Thank you. 

2. There is No Magic

            Now, we turn to the talk of the money.  And we talk of money, because, ladies and gentlemen, there is no magic. And if there was a magic that could find its way into this courtroom, we'd ask you to wave your collective wand, wave your collective wand and restore little Dalton to the health condition he was in immediately before he was delivered.  Get him back, turn the clock back to 4:25 or 3:25.  Let them make proper arrangements, and he'd have his health restored and this mama and daddy and this family would run out of this courtroom, and this set of lawyers would be right behind them, and we'd never look back. But unfortunately there is no magic. The only thing we can do in a court of law, because, you know, we no longer strap on our side arms, and go out and get an eye for an eye, we deal with things in a civilized manner.  And that is the civil justice system.  That's why they call it the civil justice system, because it is a civil way of making redress and compensation for the consequences of somebody else's carelessness. And it doesn't mean that somebody is a bad person.  Responsibility means when you depart from the standard of care that you have agreed to comply yourself with, you will be responsible money damages for those injuries that result.  That's our system, it's what makes us great. 

3. Little Boy

            Between the innocence of babyhood and the dignity of man we find a delightful creature called a boy.  Boys come in assorted sizes, but all boys have one creed:  To enjoy every second of every minute of every hour of every day and to protest with noise, their only weapon, when the last minute is finished and mom and dad pack them off to bed.  Boys are found everywhere, on top of, underneath, inside of, climbing on, emerging from, running around, or jumping to.  Mothers love them; little girls hate them; older sisters and brothers tolerate them; and heaven protects them. A boy is a magical creature.  You can lock him out of your workshop, but you can't lock him out of your heart.  You can get him out of your study, but you can't get him out of your mind.  You might as well give up.  He's your captor, he's your jailer, your boss.  A freckled-faced, pint-sized, cat-chasing bundle of noise. But when you come home at night with only shattered pieces of your hopes and dreams, you can mend them all like new with just two magic words, Hi, Mom, Hi, Dad. Kim and Patrick have yet to hear, Hi, Mom, Hi, Dad.