Obtaining better outcomes in medical litigation – Lesson 2

Different approach, issues checklist, pattern questions

Excerpted from Medical Proof of Whiplash
by Steven R. Young and Michael Melton

Do not subscribe to the idea of “indoctrinating” the jury or arguing the case in voir dire. Judges won’t let you do it, and that is to your benefit. Between the twelve people sitting in the box you have to deselect, there is five hundred years of experience, and they recognize when someone is running a scam on them. Juries know what attorneys are doing when they “indoctrinate,” and they resent it. Indoctrination is manipulation. What do jurors dislike about attorneys? Try the word, “manipulation.” Resentment is certainly not what you want in your panel.

§1602.3Kitchen Table Discussion

So what would a perfect voir dire sound like? It isn’t the indolent tones of an attorney in love with the sound of his never-ending droning, afraid to yield control, afraid of hearing anything bad said in front of the jurors that might “taint the pool.” The perfect voir dire is devoid of lawyer’s voice – a courtroom where the real people in the box are sharing how they really feel about the issues and problems in a case, with one another, oblivious to the presence of an attorney. The perfect voir dire should imitate a kitchen table discussion of the issues in the case, a sharing of ideas, without manipulation or an agenda. If you could duplicate that kitchen table feeling, wouldn’t that not only bring the jurors’ true feelings, but establish respect and connection between the jurors and you as an attorney?

Not everyone in a discussion feels the same way. There are disparate ideas. How many people would continue to talk to you at a party if every time they said something you disagree with, you shut them down and grilled them with a series of questions you think will get them to say what you want? Soon you would find yourself talking to the host’s Labrador in the corner, and thereafter scratched from the guest’s social register. It is no different in the courtroom. How long will jurors talk with someone who acts like the “bad party guest”? If you are afraid of jurors saying “bad things” about your case and try to shut them down every time someone goes astray of what you want to hear, will anyone but the Labrador (or worse, the anti-litigation crusader) talk to you on voir dire?

Focus on your goal. You want the potential jurors to be honest and tell you where they are coming from so you can intelligently exercise a peremptory challenge. If you are willing to discuss your fears and problems in the case, and you are willing to listen to “bad answers,” voir dire becomes a beautiful thing for both the attorney and the potential jurors.

Do you want the jurors to tell you if they are against your case before you begin trial, or would you prefer they keep that information to themselves and spring it for the first time in the jury room? We need a paradigm shift. We need to look at the juror who shares negative feelings with us as giving us a gift. That gift is knowledge.

What do polite people do when they receive a gift? They thank the giver. Does that seem too much to do? Consider how you have begun the voir dire. Most attorneys lie to the jury and tell them they want the potential jurors to be honest in answering their questions. The court even administers an oath to the jurors. Then as soon as a bad answer comes out, most attorneys want to flail the juror who shared it for the impertence of injecting their honesty into the case.

If the attorney is sincere in wanting honesty, the attorney thanks the juror for being honest. The attorney may even acknowledge the juror’s courage in sharing what the juror knows the attorney doesn’t want to hear. Why should you do that? Is it refreshing for a juror to hear this – an attorney thanking them for saying something bad about the case when the juror is being honest? Yes, and it empowers the other jurors to be honest. If they know you are sincere about wanting to hear their feelings, they are more willing to share. They know they can trust you, and that you are not just another one of those manipulative demons they feared facing if they were put on jury duty.

With this environment of mutual respect, you can have your kitchen table discussion and explore the basis of the negative feelings, and then, if appropriate, thank and dismiss the juror so those feelings are not in the jury room at the end of your case.

Practice Pointer:

Voir dire is not an exercise in cross examination

Voir dire is not cross-examination. It is not even a discussion of the juror’s positions and thoughts. Instead, your goal should be to explore the juror’s feelings. To do this, your voir dire should be based on questions phrased such as, “Why do you feel that way?” While the distinction between thoughts and feelings may not be obvious to most men, the seat of prejudice lies in feelings and emotions, not in the rational, thinking mind. To ferret out prejudice, you must explore the feelings from which prejudice arises. Questions posed this way lead to narrative answers, rather than “yes” or “no” answers.

To facilitate the attorney’s disappearance from voir dire, the attorney must facilitate discussion between the jurors. To do so, the attorney must ask the juror’s feelings concerning other jurors’ answers, or whether they agree with what a juror has shared. By having the jurors think in terms of other jurors’ answers, rather than the attorney’s questions, the jurors become more forthcoming and speak to each other rather than the attorney. If the attorney is successful in doing so, the discussion between the jurors gives a better insight to the jurors because they are then simply discussing the issues with another layman, and not responding to a lawyer’s intrusive questions in a courtroom.

§1602.4Preparing for Voir Dire

The approach to preparing for this type of voir dire is different than customarily used to prepare for voir dire. It involves an attorney’s introspective consideration of the case and the attorney’s fears:

  • Identify those matter(s) that trouble you about the case.

  • Explore your personal feelings about the matter(s) that trouble you.

  • Determine why the matters trouble you.

How do you do this, or select the issues to address? You first list each problem with the case, or what you fear the other side will use against you. Then ask, what is the underlying emotion, why am I afraid of this? When you understand the feelings you and your client have on the issues, then you can go to the next level and seek to determine how you want the jury to feel about you, your client and the case when you finish discussing the issue on voir dire.

At voir dire, using the list and introspection you have conducted, approach the potential jurors by:

  • Sharing your feelings(s) and fear(s) about the matter(s) with the jury.

  • Inviting the jury to share their feelings about the matter with you. Ask how they feel about what you are sharing.

  • Accepting (honoring) the gifts the jury gives you.

  • Continuing to share your feelings and invite the jury to share theirs.

§1602.5Issues Checklist

An abbreviated issues checklist follows:

( ) Labeling injury “whiplash”

( ) Feelings toward chiropractors

( ) Minor damage to vehicles

( ) Taking responsibility

( ) “I’m sorry” is not equivalent to taking responsibility

( ) Junk science

( ) “Would you sue if injured in an auto accident?”

( ) Insurance costs and relationship to lawsuits

( ) Plaintiff appears to be fine [almost 2 years post-accident]

( ) Defendant said he is responsible, what more do you want?

( ) Money will not take away Plaintiff’s injuries or hurt, or give him back his wrist or his shoulder, or his confidence, dignity and strength.

( ) How can dollars equal justice?

( ) Plaintiff came here wanting to cash in on a mere accident.

( ) Dislike attorney

( ) Tort reform publicity

( ) Plaintiff doesn’t stand a chance because people should be self-sufficient and plaintiff is only seeking to get something for nothing.

( ) Damages and expert issues

a.Whiplash

Q: This is a case involving movement of the plaintiff’s head and neck that some people characterize as “whiplash.” Do any of you have any feelings about whether whiplash injuries are real?

Practice Pointer:

Address the term “whiplash”

The defense and the jury will refer to the movement as “whiplash.” Face it. Address it. You must know how the jury feels about it.

Q: This is a soft tissue case. Does the fact that this is a “soft tissue case” bring to mind any opinions, feelings or concerns you have? How do you feel about soft tissue cases? Do any of you know anyone who has suffered a soft tissue injury?

Q: Would it make any difference to your feelings about this case if I told you the soft tissue that was injured in the crash is the Plaintiff’s brain?

Q: Does anyone on the panel know anything about brain injury? What do you know about brain injury?

Q: By a show of hands, how many of you believe that a significant impact to the head is necessary to cause brain injury?

Q: Have any of you heard of “shaken baby syndrome” where a child’s brain may be seriously damaged by shaking, without a blow to the head?

Practice Pointer:

“Shaken baby” is most important question

This is probably the most important question you can ask on voir dire in this kind of case. Everyone on the jury will know what you are talking about. Every juror will understand, by this one question, that you do not have to hit your head to have a brain injury. Every juror will understand that a whipping motion of the head causes brain injury. Every juror will, with this one question, have a personal visual of a child being shaken to death.

Q: Does anyone on the panel believe that brain injury is only evidenced by a loss of consciousness?

Q: How should someone with a brain injury look?

Q: How should someone with a brain injury act?

Q: Does anyone on the jury know the symptoms of any type or kind of brain injury?

Q: During trial, certain conditions, such as depression, anxiety, irritability, mood swings etc., may be referred to as “lability.” Is anyone familiar with any of these conditions or with lability? Does anyone know anyone that suffers with such conditions? Has anyone had any experience with the treatment of these conditions?

Q: Has anyone heard the term “cognitive impairment,” or “thinking difficulties”? Does anyone know anyone who suffers with such conditions? Has anyone had any experience with the treatment of these conditions?

Q: Has anyone heard the term “memory deficit”? Does anyone know anyone who suffers with this condition? Has anyone had any experience with the treatment of this condition?

Q: Has anyone heard the term “depression”? Does anyone know anyone who suffers with such conditions? Has anyone had any experience with the treatment of these conditions?

Q: Has anyone heard the term “anxiety”? Does anyone know anyone who suffers with such conditions? Has anyone had any experience with the treatment of these conditions?

Q: Has anyone heard the term “panic attacks”? Does anyone know anyone who suffers with such conditions? Has anyone had any experience with the treatment of these conditions?

Q: Has anyone heard the term “pseudo-dementia”? Does anyone know anyone who suffers with such conditions? Has anyone had any experience with the treatment of these conditions?

Q: Has anyone heard the term “severe dementia”? Does anyone know anyone who suffers with such conditions? Has anyone had any experience with the treatment of these conditions?

Q: Does anyone on the panel have any beliefs that brain injury does not cause depression, anxiety, irritability, or mood swings?

b.Chiropractors

Q: Do any of you use chiropractors?

Q: Under what circumstances would you go to a chiropractor?

Q: Does anyone on the panel believe that no matter what their condition, they would never consult a chiropractor?

Q: Does anyone hold any opinions that chiropractors are quacks?

Practice Pointer:

Confront jurors’ lack of faith in chiropractors

Face it – most jurors have little faith in chiropractors as medical providers, though they may run to one when they are in pain. Discuss the jurors’ use of chiropractors, and why they use them, to instill a memory of their own pain that caused them to seek out the chiropractor. If you only have chiropractic treatment for your medical work up, plan on excusing all doctors, nurses, and other traditional medical professionals, who almost without exception, bear an unalterable prejudice against chiropractors and consider them quacks.

c.Minor Damage to Vehicles

The central component of the defense case will be the photographs of your client’s car, that invariably will show “no damage.” Deal with it. You can’t run away from it. You have to be the matador, cooly staring the bull in the eye as it charges. Tell the jury about the problem in voir dire. Explain that defendant thinks this will excuse them from responsibility for the injuries Defendant caused.

d.Taking Responsibility

Q: What does it mean to you to “be responsible for our actions”?

Q: How do you feel about people who seek to shift responsibility for their actions to another?

Q: Do you feel it is appropriate for someone who injures another to seek to avoid responsibility to the injured party?

Practice Pointer:

Make this common defense theme your own

A recurring defense theme is responsibility. Defendants urge the jury that Plaintiffs should take responsibility for their own injuries. By doing so, defense attorneys “spin” what should be the Plaintiff’s position. Reclaim this theme. For example: “Defendant seeks to avoid responsibility by walking away with a zero verdict for injuries Defendant caused. Defendants admit negligence, then seek to shift responsibility away from themselves. Call a spade a spade. Defendant is seeking to avoid responsibility for an accident she admits she negligently caused.”

e.“Sorry”

Q: Is saying “I’m sorry,” taking responsibility?

Q: Is simply acknowledging liability, without taking any steps to correct the problem enough?

Q: How do you feel about someone who says, “I’m sorry,” but refuses to do more?

Q: Does someone really mean “I’m sorry” if he doesn’t take responsibility?

Practice pointer:

Saying “I’m sorry,” is not taking responsibility

Acknowledging liability does not correct the problem or constitute responsibility. “As children, we learned from our parents that saying ‘I’m sorry,’ is the beginning, not the end. ‘I’m sorry’ begins the process, it does not end the process.”

f.Junk Science

Q: Do you believe that you can look at pictures of a car and determine how fast it was going?

Q: Can you look at a picture and determine whether someone was injured?

Q: Do any of you know of persons in horrible crashes that walked away without a scratch?

Q: Do any of you know of people injured in cars that look like there was no damage whatsoever to the cars?

Q: How do you feel about “junk science”?

Practice Pointer:

Be prepared to define “junk science”

“What is junk science?” If you use the term, a juror will ask this question. Be prepared with a short, direct definition. Give the definition, then ask the following questions.

Q: Is it something we should depend on to make important decisions?

Q: Is it something we should rely upon to resolve the issues in this case?”

g.“Would you sue?”

Q: If you were injured in an automobile accident, would you sue?

Practice Pointer:

If juror wouldn’t sue, he won’t be sympathetic to plaintiff

This is a central question. Research shows that if someone would not sue for injures, he will invariably vote for the defense.

Q: How many of you feel that we are in the midst of a litigation crisis?

Q: Do any of you feel that frivolous lawsuits and excessive awards are raising our insurance rates, and jeopardizing important community services?

Q: We regularly see companies advertising on television about bogus claims from accidents, or staged accidents. The implication being that the claims are bogus, injured people are opportunistic, and that lawyers are greedy. How would you feel about those commercials if someone suggested to you that the real purpose of those ads is to preprogram jurors that accidents are staged?

Q: These are all serious concerns. How do we determine what is a “real” case and what is a “frivolous” case?

Q: Can you commit to me that if my client is not hurt that you will not give him money for pity, but that if the defendant caused his injuries that you award him every penny he is entitled to?

Practice pointer:

You must deal with this issue

Give the jurors their chance to say what they have to say about these issues. Thank them for their honesty. You must learn what their attitudes are so you can discuss them and learn whether to keep or excuse the jurors on this issue.

h.Insurance

You will not give Plaintiff what she deserves because you may worry that what you do here will negatively effect you in the form of increased insurance costs.

i.Monetary Compensation for Injuries

Q: Can money take away Plaintiff’s injuries or hurt, or give him back his brain or his confidence, dignity and strength?

Q: How can dollars equal justice?

Q: Does anyone feel that Plaintiff came here wanting to cash in on a mere accident?

Q: I fear that tort reform publicity will sway you against Plaintiff, before I can even tell you what Defendant did wrong and why he is responsible to Plaintiff. How many of you feel that tort reform is necessary?

j.Other Issues

Other issues to raise with the panel include:

  • You won’t understand what this injury has done to Plaintiff because now, after almost 2 years, he seems fine.

  • Defendant said he is responsible, what more do you want?

  • You will find something in me you don’t like and hold it against Plaintiff.

  • Juries have no heart, plaintiffs don’t stand a chance here because we are self-sufficient and plaintiffs are only seeking to get something for nothing.

  • Damages and expert issues.

 


The above advice came from…

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  • Whiplash cannot successfully be faked. Page 79
  • Pain is due to organic causes, not psychological disturbances. Page 77
  • Serious neck injury can occur with only minor vehicle damage. Page 4
  • 90% of head restraints do not protect occupants from injury. Page 83
  • Seat belts increase the incidence of cervical strain. Page 84
  • A turned head greatly increases the incidence and severity of injury. Page 215
  • Litigation does not ‘cure’ whiplash symptoms. Page 81

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