Claims and defenses, with evidence proving or disproving.

By Beth D. Osowski

Excerpted from Trial Preparation Tools

Four months before trial, litigation files will be at various stages of preparation.  Some will be solid and nearly ready to go, leaving the attorney begging for a jury.  Others may have been somewhat neglected because the attorney fully expected the case to settle at mediation.  Seemingly ideal cases suddenly fall apart as witnesses disappear or new issues emerge.  Sometimes a case was prepared as though it involved a minor injury, and then the “minor injury” was treated with major surgery. However a case has developed, a systematic review of the entire case enables you to see the big picture and also is a means of getting the case and yourself organized for trial.

This process requires a review of the entire file.  I call this review “refreshing,” because, unless you just inherited the case, very little should be new to you.  If it is a file you have worked for months or years, then you created much of the work product you’ll be reviewing.  Still, rereading the file at this stage, 120 days before trial, permits you to see the information in a new light.  Some statements made in an early deposition suddenly seem important.  Omissions become more obvious.  Gaps in your evidentiary proof become more alarming.

 Most importantly, as you perform the refreshing review, you can simultaneously build or update various files and documents you need to prepare for trial, including the:

  • Pleadings Index [see §1:11; see also Form 1-02 at the end of this chapter].

  • Elements-of-Proof Rubric [see §1:22].

  • Discovery Index [see §1:41].

  • Medical Record Summary [see §1:51; see also Form 1-04 at the end of this chapter].

  • Motion in Limine Topics Log [see §1:61].

  • Demonstrative Evidence Log [see §1:62; see also Form 1-06 at the end of this chapter].

  • Quantifying Pain and Suffering Log [see §1:63; see also Form 1-07 at the end of this chapter].

  • Theme Log [see §1:64; see Form 1-08 at the end of this chapter].

  • Other trial logs, lists and files [see §§1:65-1:70].

This “refreshing” review should usually start with the pleadings.  Read the complaints and answers from cover to cover.  While doing so, make a list of all claims alleged and the corresponding defenses.

Establishing Claims and Defenses

Review Jury Instructions and Verdict Forms for Elements of Claims and Defenses

The first column of the Elements-of-Proof Rubric is made up of the claims and defenses at issue in the trial. After the first column has been completed, the next step is to determine what elements will be necessary to establish each claim and defense.  A good place to start is the standard or uniform set of jury instructions and verdict forms for your jurisdiction.

Even though the judge may not demand proposed jury instructions and verdict forms until shortly before trial, four months earlier you should have a fairly good idea how the jury will be charged.  In the typical cases, standard instructions will be available for your claims. When the standard, uniform instructions do not cover particular aspects of the case, or are no longer good law, look to the statutes and case law for language for custom-drafted instructions.

In many jurisdictions, at four months prior to trial, you will still not know how the judge will charge the jury.  Thus, at this stage, you should assume that you may lose all the battles down the road.  If the judge holds you to the most difficult standards, what must you establish?  What is the minimum that the opposition will need to prove to defeat your claims?  Approach your Elements-of-Proof Rubric with these tougher standards in mind, and then your job can only get easier as trial approaches.

Separately Cover Each Element

Each of the claims and defenses must be carefully broken down into the necessary elements using the jury instructions, special verdicts, cases, statutes, other relevant statements of law, and the facts of your particular case.  While some of the elements will be straight-forward, others may need to be broken down into several different sub-elements.  For example, in a negligent operation of motor vehicle case, it is fairly obvious that the driver of the automobile had a duty to operate the automobile safely; the real issue is one of a breach of that duty of ordinary care.  However, in other negligence cases, there may be a real issue as to whether or not the person owed any duty of care.  This issue may be raised as to the parent of a minor driver, the owner of the automobile involved in the accident, or in a case involving an injured trespasser.

Sometimes questions of fact will necessitate breaking down an element into many parts.  In the sample case presented here, it is assumed a question of fact was raised as to whether or not the defendant was actually the driver of the car involved in the accident.  If this may be an issue, it should be listed in the Rubric so that you may be certain you have evidence to address the contention.

Once you have decided upon your issues, take the time to complete the Elements-of-Proof Rubric with this information.  As every case is unique, every list of elements should be specially tailored to the issues presented.

Sample: Elements-of-Proof Rubric



Evidence Proving/Disproving

Negligent operation

of a motor vehicle.

1.  Defendant was driving. Defendant admitted.  (Def’s         depo at 5, lines 3-7.)
2.  Defendant failed to use ordinary care/ created an unreasonable risk of injury. 1.  Witness A saw excessive speed.  (A’s depo at 2, lines 3-5.)

Def said cruise set at 10 mph.  (Def’s interrogatories at ¶ 3.)

2.  Officer B found no evidence of braking, such as skid marks.  B’s depo at 4, lines 1-3.)

A heard squealing tires.  (A’s written statement to Officer B.)

3.  Def not wearing prescription glasses.  (Def’s interrogatories at ¶ 5.)



Evidence Proving/Disproving

Contributory negligence 1.  Plaintiff failed to exercise ordinary care in way that contributed to accident, i.e., Was plaintiff at fault? 1.  Officer B said that Plaintiff should have seen the defendant approach from 100 yards.  (B’s depo at 6, lines 4-8.)

Witness A saw excessive speed.  (A’s depo at 2, lines 3-5.)

2.  Plaintiff was going to the body shop to have her brakes tested.  (Pl’s statement to Officer B.)

Plaintiff will say that she never had time to brake, because defendant was driving too fast.

2.  Plaintiff failed to use ordinary care for own safety in way that contributed to injuries, i.e., Was the fault a proximate cause of the injuries? Plaintiff admitted she was not wearing a seatbelt.

Defendant has not named a biomechanical who could testify about enhanced injuries.



Evidence Proving/Disproving

Pain and suffering. 1.  Pain/suffering 1.  Paramedic C will testify that plaintiff was screaming in pain at the scene.  (C’s depo at 2.)

2.  Co-worker D will say pl. can no longer sit for 30 minutes without making faces.

D got fired for theft.  (D’s depo at 6.).

3.  Medical records show that pl never even took Tylenol before, but now pl takes pain meds every day.  (Exhibit E at 4 & 10.)

2.  Physical impairment

3.  Humiliation and anxiety. 1.  Medical records say that pl. had no concerns.

2.  Spouse says that their marriage has never been better.



Evidence Proving/Disproving

Failure to mitigate. 1.  Plaintiff failed to use ordinary care to obtain proper medical treatment. Gap in all treatment for 30 days after initial ER treatment.  (Ex. E.)

ER doctor said that it would get better in time.  (Ex. E at 7.)

Plaintiff had no money to pay for treatment.

2.  Plaintiff failed to use ordinary care to follow home exercise program. PT records suggest pl did not know how to do the exercises on return visits.  (Ex. F at 10.)

Pl. says she did the exercises religiously.  (Pl’s depo at 3, lines 5-6.)



Evidence Proving/Disproving

Medical Specials 1.  Bills were for reasonable treatment for the plaintiff. Dr. G will give opinion to proper standard.  (G’s depo at 15, lines 1-6.)

Insurance Medical Exam Dr. H will say chiropractic treatment was excessive.  (H’s Report at 3.)

2.  Treatment was necessary as a result of the accident. 1.  Dr. G will testify as to cause to the proper standard.

IME H will disagree.  (H’s Report at 4.)

2.  Biomechanical engineer J will testify that accident at that speed could cause injuries.  (J’s expert report at 3.)

3.  Pl. will say she never had the pain before the accident.

3.  Bills were reasonable and necessary for the treatment provided. Dr. G will give the opinion at trial.

Insurance Medical Exam Dr. H will say 3 medical treatment bills were excessive.  (H’s Report at 5.)



Evidence Proving/Disproving



1.  Plaintiff had prior low back condition. Dr. G. will testify that the only treatment to Pl’s low back was 10 years prior to the accident, and that she had no condition to her low back on the date of this accident.  (G’s depo at 8, lines 2-6.)

Insurance Medical Exam Dr. H will say that Pl. has a pars defect, and that was the real cause of her current problems.  (H’s Report at 8.)

2.  Plaintiff’s current problems are the natural result of the prior problem. See above.

Beth D. Osowski represents civil litigants in many areas, including motor vehicle accidents, premises and product liability, medical and legal malpractice, contract and business litigation, construction disputes, will contests, real estate and landlord/tenant matters.  In 2007, she received what is believed to be the largest jury verdict in her county’s history for a premises liability case.

She has presented many legal seminars as well as authored dozens of outlines for continuing legal education courses.  Ms. Osowski ranked first in her University of North Dakota law school class all three years, and was awarded Moot Court Champion and Best Oralist.  Ms. Osowski is the author of Trial Preparation Tools, from which this article is excerpted.