Guidelines for Handling the Plaintiff’s Personal Injury Case


I.                   Jury Selection

A.                 Before the trial:

                                                  i.            Obtain the jury list.

                                               ii.            Study it carefully.

                                             iii.            Have everyone you know in the community review it.

                                              iv.            Run every potential juror on CCAP.

B.                 At trial:

                                                  i.            It is helpful to have someone – an associate or paralegal – help you during voir dire.  He or she can take notes so you can watch the jurors.

                                               ii.            You must have a conversation with the jurors.

                                             iii.            Ask open-ended questions.

                                              iv.            No leading unless you are trying to strike someone you have already determined is bad for you.

C.                 Always insist that voir dire is on the record.

D.                Be aware that jurors want people to take responsibility for their actions and the defense will use this against your client.

                                                  i.            You have to pre-empt this by turning it against the defendants.

                                               ii.            We are here because the defendant has not taken responsibility for his actions.

E.                 Begin to establish your theme of personal responsibility:

                                                  i.            For example, if your theme is personal responsibility, you could ask a teacher if she is responsible for preparing a lesson plan for class, and if she is held accountable if she does not prepare it.

                                               ii.            There will always be a potential juror who has an occupation which opens the door for you to talk about personal responsibility in a way that helps your client.

F.                 Do not be afraid to talk about the facts of your case:

                                                  i.            We are here today to talk about ….

                                               ii.            This case involves …

II.                Opening Statement

A.                 Jurors form their first, and often strongest, impressions of a case after hearing the attorneys’ opening statements.  

                                                  i.            Studies show that a majority of jurors form opinions following openings and do not change them after hearing the evidence.  

                                               ii.            This does not mean that a majority of jurors decide what the verdict will be after opening, but rather that they form a picture of what the case is about, a point of view.

                                             iii.            It is human nature to seek out facts that support “our side” or “point of view.”  After opening, a majority of jurors know which side they are “pulling for.”

1.                   From then on, they tend to look at the evidence from the vantage point of the side they favor.

2.                  When a juror looks at the evidence from one side of the case, he or she tends to support that side.

B.                 Remember that jurors rely on widely – and firmly – held beliefs about situations.  These are preconceptions, based on past experience, to organize information and come to quick conclusions.

                                                        i.      The opening statement is a psychological filter through which evidence introduced at trial passes.

                                                     ii.      Evidence consistent with the filter is seen as reliable, credible and acceptable.

                                                   iii.      Evidence which conflicts with it will be questioned or discounted.

C.                 Do not “blow it” with common mistakes, such as:

                                                  i.            Using tired clichés like “this is a road map.”

                                               ii.            Being paternalistic or condescending.

                                             iii.            Saying, “this is a very simple case” and making your jurors feel inept or ignorant or naïve.

                                              iv.            Telling the jurors that “what I say is not evidence” and leading the jurors to think that what you say is not important, or even worse, not true.

                                                v.            Calling the plaintiff “my client” which dehumanizes him or her, and also emphasizes the business nature of your relationship.

                                              vi.            Repeating “the evidence will show” again and again and again, ensuring that the flow of the story you want to tell is totally and irrevocably lost.

D.                Ten important keys to a powerful opening statement:

                                                  i.            Tell a story.

                                               ii.            Avoid notes – if you don’t care enough to speak from your heart, you don’t care enough about the case.

                                             iii.            Carefully plan the first two minutes to grab the jury’s attention.

                                              iv.            Begin with today and go back in time.

                                                v.            Personalize the client.

                                              vi.            Plan a theme and use “theme” words throughout the opening and the case.

                                           vii.            Avoid legalese.

                                         viii.            Understatement is your friend.

                                              ix.            Admit problem areas and beat the defense to the punch.

                                                x.            Generalize damages.

E.                 The most powerful call is not to do right but to undo wrong.  It is not justice which motivates jurors, but injustice, and the power to right a wrong.

F.                 Looking at the trial from the standpoint of righting a wrong shows you what to do with opening statement:

                                                  i.            Comprehension is important – jurors cannot right an injustice if they don’t understand the facts.

                                               ii.            Identification is important – you want the jurors to identify with the injustice.

                                             iii.            Credibility is important – there will be no sense of injustice if the jury cannot trust what it hears.

                                              iv.            Impact is important – you want the jurors to remember what you say and you want your words to create a picture in their minds.

III.             Presentation of Evidence

A.                 Try to be understanding of the jury within the confines of witness availability.

                                                  i.            It helps the jury if the evidence makes sense as it comes in.

                                               ii.            This means it is wise to “set the scene” with the first witness so that the jury has a context within which to place the remaining testimony.

B.                 The first witness should be someone you can control and has the ability to “set the scene.”

                                                  i.            An eye witness to the accident.

                                               ii.            The defendant doctor.

                                             iii.            The nurse’s aide who knew the most about your client’s stay in the nursing home.

C.                 Unless liability is unquestionable, you usually want to establish liability – i.e., get the jury on your side – before you start putting in damage testimony.

                                                  i.            Often this is impossible, if your experts cannot be there at the most opportune time.

                                               ii.            But, unlike the old days, when damages/sympathy could carry the day, today the jury can be turned off by a plea for sympathy.

                                             iii.            If the jury does not want you to win, it won’t be listening to the damages testimony.

D.                When to put your client on the stand?

                                                  i.            Put the client last or nearly last.

                                               ii.            Let the jury know all about him or her before they hear from him or her.

                                             iii.            The client gets more comfortable in the courtroom.

                                              iv.            The client sees which types of testimony work and which do not.

                                                v.            The client should testify very little – everything should have already been said.

IV.              Direct Examination of Witnesses

A.                 This is the most important part of the case.

                                                  i.            The witness (not you, the lawyer) is talking to the jury.

                                               ii.            The jurors want to hear from the witness (not you).

                                             iii.            This is where you meet your burden of proof.

B.                 The first step is witness selection.

                                                  i.            Do not use witnesses you do not need.

                                               ii.            Every witness is a risk.

                                             iii.            Will the witness further your case?

                                              iv.            Is there a chance this witness will hurt you?

1.       Does he or she have knowledge that, if revealed, ruins your case?

2.      Is this witness critical or is there a different witness that will fulfill the purpose without the risk?

                                                v.            Is the witness presentable?  Trustworthy?  Likeable?

C.                 Teach your witnesses to testify effectively:

                                                  i.            Look at the jury.

                                               ii.            Just answer the question.

                                             iii.            Be yourself.

                                              iv.            It’s ok to say “I don’t know” or “What?” or “I don’t understand your question” or “No.”

                                                v.            Tell the truth.

                                              vi.            Don’t change personality between direct and cross.

D.                Practical aspect of conducting direct examination:

                                                  i.            No leading!

1.       This destroys the flow.

2.      It does not allow the witness to establish a rapport or conversation with the jury.

3.      It looks like you are afraid of what the witness will say.

4.      The story does not get told.

                                               ii.            Speak in a conversational manner.

1.       This calms the witness and helps him focus.

2.      Witnesses tend to follow your example.

3.      Simple language.

4.      Short and simple questions.

5.      One thought per question.

                                             iii.            Do not write out your questions.

1.       This will kill the conversational tone.

2.      This will impede your listening to the witness.

                                              iv.            Do have a check list so you don’t forget any important points.

                                                v.            Announce your transitions.

1.       Now I want to talk about what happened after the accident.

2.      Let’s talk about how the injuries have affected Mary’s ability to work.

3.      You want to keep the witness from getting confused.

4.      You want to help the witness follow what is going on.

                                              vi.            Do not drag out the direct.

1.       Jurors hate delay.

2.      They know when you are stalling.

3.      They will hate you for keeping them longer than absolutely necessary.

4.      In post-trial questioning of jurors, slow lawyers, or lawyers who stall, are the one thing they hate most.

E.         Re-direct is dangerous.  Sometimes, of course, re-direct is necessary.  Other times, you have questions you would like to ask but that are not critical.   Before you undertake re-direct, force yourself to go through a cost-benefit analysis which includes these points:

                                                  i.            How strong the witness is.

                                               ii.            How important the points you wish to address are.

                                             iii.            How likely you are to elicit the testimony you want.

                                              iv.            How relieved you were when the defense lawyer sat down after cross.

                                                v.            Only redirect if the risk of exposing your witness to cross is outweighed by the importance of your questions.

V.                 Cross-Examination of Witnesses

A.                 This is one of the four times that you as the lawyer are allowed to “testify” in a trial – the other three are voir dire, opening and closing.  

B.                 You are entitled to lead on cross-examination, and lead you must.

                                                  i.            It sends the message that you cannot trust the witness – you have to tell her what to say.

                                               ii.            All of the reasons ­not to use leading on direct are reasons you should use leading on cross.

                                             iii.            You do all the talking and the witness agrees that what you say is true.

                                              iv.            You are the real witness while the one on the stand merely vouches for the accuracy of your testimony.

C.                 This is your opportunity to give your side of the witness’s story your way.

                                                  i.            You do not want information from the witness.

                                               ii.            You already know the information.

                                             iii.            You want to use cross to get the information across to the jury.

D.                Techniques that make it work:

                                                  i.            Use short leading questions that are really simple statements of fact;

1.       You were employed at Sunnyside Nursing Home on March 16, 2003?

a.      Yes

2.      You were the RN in charge of the facility?

a.      Yes

3.      An LPN called you to assess a resident who fell?

a.      Yes

4.      That resident was Connie Smith?

a.      Yes

5.      She was bleeding from a gash on the side of her head?

a.      Yes

VI.                          Proving Specials

A.                 This is simple, almost mechanical.

                                                  i.            Have every bill marked and attached to a summary of all bills with a total.

                                               ii.            If there is more than one treater who will testify, have separate packets of bills with a separate summary.

                                             iii.            Mark the summary with attachments as an exhibit.

                                              iv.            Ask the doctor if the bills are:

1.       Reasonable;

2.      Necessary; and

3.      Causally related to the accident which is the subject of this lawsuit.

                                                v.            Have a similar document regarding wage loss and put it in through the Human Resources person of the employer, or the plaintiff’s boss, or some other suitable person.

B.                 Many times you can establish these special damages in discovery.

                                                  i.            The easiest way is to have the treater answer the relevant questions at his or her deposition.

                                               ii.            Once you have “yes” answers to those questions, to a reasonable degree of medical certainty or probability, you have your specials.

C.                 Or, you can send out Requests to Admit which have each bill as an exhibit and ask the pertinent questions about each bill.  In Requests to Admit, ask the following FIVE questions about each bill:

i.       That the documents attached hereto as Exhibit 1 are authentic duplicate copies of the charges incurred by plaintiff for treatment rendered to her by Harwood Medical Associates (Dr. Hoke) and need not be further identified by the custodian of the records.

ii.      That the charges set forth in Exhibit 1 are reasonable in amount.

iii.    That the charges set forth in Exhibit 1 were necessarily incurred for treatment of injuries which were a result of the accident which occurred on 5/26/05.

 iv.    That the charges set forth in Exhibit 1 were necessarily incurred as a result of the accident which occurred on 5/26/05.

v.      That the negligence of Tom Smith on 5/26/05 was a cause of the charges on Exhibit 1.

VII.           Proving Pain, Suffering and Disability

A.                 Medical testimony by treaters is the best.

                                                  i.            Objective evidence is great:

1.       X-ray showing wires and screws holding the elbow together.

2.      Film showing bulging disc.

3.      Photos of pre-surgery condition.

4.      Photos during surgery.

                                               ii.            Testimony of painfulness of the condition.

                                             iii.            Testimony of the painkillers prescribed.

                                              iv.            Testimony of the long, slow process of recovery.

1.       Physical therapists are often overlooked and can be very good witnesses.

2.      Occupational therapists with testimony of the various milestones reached and how long it took to get there.

B.                 Lay Witnesses

                           i.       Lay witnesses are perfect for setting the stage because:

   1.  They have no stake in the outcome.

   2.  They are more believable to the jury.            

   3.  They relate interesting anecdotes.

   4.  Together they add up to credibility.  

 ii.    “Rules” in the use of lay witnesses:

                                     1.  Use many — at least 8-10.

                                     2.  They must tell a story.

                                     3.  Cover all aspects of your client’s life:

                                                (1)       Work

                                                (2)       Hobbies

                                                (3)       Family

                                                (4)       Home

                                                (5)       Charity  

                                                (6)       Neighbors

                                    4.  Be very brief with each witness – 5 – 10 minutes.

                                    5.  No repetition.

                                    6.  Spread them out throughout the trial.

                                    7.  Save family members until last.

                                    8.  Don’t be afraid of examples of her trying to do things.

                                    9.  Look for examples that she has “kept her chin up.”

iii.    Follow a careful and non-leading script:

                                    1.  What is your name?

                                    2.  How do you know Jane?

                                    3.  Did you know her before the accident of September5, 2005?  

                                         Did you see her regularly?

                                    4.  Have you seen her regularly since the accident?

                                    5.  Can you tell the jury if you noticed anything different about her

                                          after the accident?

                                    6.  Is she able to do the things now that she could do before the


                                    7.  Please provide some examples to the jury.

C.         Guides to the Evaluation of Permanent Impairment, American Medical Association, Chapter 15, “Pain.”

  i.     Refer your client’s treaters, and your experts, to this treatise.

             ii.     Use it when cross-examining defense experts.

D.    Practical Considerations:

i.       Your client must be legitimate.

ii.      Your treater must believe in your client.  

iii.    Your expert must believe in your treater and in your client.

                           iv.     You must lay the ground work so that the jury believes your                                   client, your treater and your expert.

VIII.        Closing Argument

A.                 Best ways to maximize the impact of your closing argument:

                                                  i.         Answer the simple and fundamental question, “Why are we here?”

                                               ii.      Reduce the case to a 10-word telegram:

1.       He failed to take the time to be sure.

2.      A deal’s a deal.

3.      He just didn’t think about it.

4.      She was too busy to recheck the settings.

5.      Atlas Company only cared about the bottom line.

6.      Speed kills.

                                                   iii.      Be sincere.  Avoid “clever” or “cute” arguments.  Be spontaneous with your words, your visual images and the intensity of your belief.

                                                    iv.      Make the jurors hear, see and feel. Lift them up.

                                                      v.      Don’t forget about the power of silence.

                                                    vi.      Don’t forget about the power of repetition.

                                                 vii.      Make the jury proactive:  “Join me in speaking for her…”

                                               viii.      Empower the jury:  We are participating in a process which is priceless in a democratic society.  Trial by jury is the foundation of our society.  Each of you is important.

1.       Nothing you do will ever have the impact of your verdict today.

2.      Your voice will never be heard so loudly in your community

                                                    ix.      Use simple, clear and concise language.

B.                 Practical thoughts for your closing:

                                                  i.            No reading from notes.  You can refer to your notes, but sparingly.  

                                               ii.            Use exhibits.

1.       Enlarge and show the jury critical excerpts from trial testimony and significant exhibits.

2.      Replay vital portions of any videotaped depositions that were shown to the jury during trial.

3.      Explain the evidence using diagrams, tables and demonstrative charts.

                                                   iii.      Test your theme in advance with focus groups and others.

                                                    iv.      Know the time limits so you do not run out of time or use up your rebuttal time in your first closing.

                                                      v.      Speak directly to each juror and make eye contact with each juror during closing.

 IX.      Post-Trial Relief

A.                 Motions after Verdict.

                                                  i.            You must file motions after verdict within 20 days after the verdict is entered.  Wis. Stat. § 805.16(1).

                                               ii.            Court can set a longer time.

B.                 Motions after verdict must be heard more than 10 days and less than 60 days after the verdict is rendered.  Wis. Stat. § 805.16(2).

                                                  i.            This can be extended, but it is dangerous to do so.

                                               ii.            See Wis. Stat. § 805.16(3).

C.                 If the judge does not issue the decision within 90 days after the verdict is rendered, the motion is deemed denied.  Wis. Stat. § 805.16(3).