The anti-tort language begins with the magic linguistic formula of personal responsibility. From Steven Covey, to Dr. Phil, popular culture has been telling Americans to take responsibility for their mistakes and bad choices. The experience of having suffered a bad education, childhood poverty, or even child abuse, is now not a valid societal excuse for not pulling oneself up by the bootstraps to compete with those who grew up in stable middle class or privileged environments.
Look at Oprah’s success. Look at the inspiring stories touted by the likes of Tony Robbins of horribly maimed accident victims who have gone on to successful and apparently happy lives.
A person who does not recover from an injury on his own falls short of these paradigms. And, the reason that he has not recovered is that he has not taken personal responsibility for his life. This belief dovetails with another fundamental widely-held belief that we live in a just and ordered universe in which everything happens for a reason. Holders of this belief often further believe that mostly good things happen to good people. Therefore, when things go wrong for your client, your jurors first want to know what the client has done wrong, so that the jurors’ concept of an ordered and just universe can remain intact. Both of the above beliefs feed the “blame the victim” trend that is now endemic in the jury room.
Even the word “victim” has become a pejorative term associated with a person who just isn’t trying hard enough. It must be deleted from plaintiff’s vocabulary.
Turn the Myth Around — Make the Defendants Personally Responsible for Your Client’s Pain
As lesson number one, insist over and over again that the offending doctor in a malpractice case, or the offending tortfeasor in any negligence case, take personal responsibility for his or her actions. Begin in jury selection by describing the case as one brought against Dr. X to hold him responsible for violating accepted medical standards and causing harm to your client. In describing the facts, use the magic words “Dr. X was responsible as the attending surgeon for the performance of a safe operation that followed accepted medical practice in the community.” If you repeatedly use the words before defense counsel uses them, you will own them.
Plan to repeat the word “responsibility” early and often throughout the trial. The word must resonate with jurors not only because of their prior cultural exposure to the term, but because it becomes associated with the defendant’s failings.
Excerpted from the free eBook Proving Pain & Suffering by Paul W. Cutrone