Polarizing Personal Injury Cases

Polarizing personal injury cases means making it clear from the outset that the defendant’s position is unreasonable.

“Polarizing” means just that. You’re creating two poles. One pole is your position in the case. The other pole is the defendant’s position in the case. The two poles are opposite, they contradict each other and the jury has to decide which pole to go with. Polarizing may be most effective in those cases where the defense medical expert is the so-called “12-week expert”. Another instance where it is appropriate is where the defense expert is somehow claiming lack of effort, malingering or secondary gain by the plaintiff.

Polarizing Personal Injury Cases- Start at the Beginning

This may begin in voir dire.  For example, a plaintiff has multiple lay witnesses who confirm the  changes in the plaintiff after the injury.  The defense on the other hand has a professional neuropsychologist who has earned a substantial fee and seen the plaintiff once.  Do any of you think that just because the neuropsychologist has an advanced degree that therefore makes him better able to comment on changes in the plaintiff after the injury.

It can be used in opening statement where you highlight some position taken by the defense either on liability or damages that is starkly contradicted by the plaintiff.  You don’t need to ask the jury how they would resolve that conflict.  You just lay out what the conflict is. 

Polarizing Your Presentation

In the cross-examination of a defense expert you don’t fall into the trap that it’s simply a battle of the experts.  It’s not a battle of the experts.  It’s the plaintiff’s testimony.  Plus the testimony of their lay witnesses.  Plus the testimony of multiple treating physicians who have seen the plaintiff numerous times.  All of that is then stacked up against high-paid defense experts who have seen the plaintiff one time.  

In the presentation of your evidence, you may want to admit the defendant’s responses to Request for Admissions.  For instance, if you ask them to admit liability and they denied it where liability is clear, that may be offered.  If you ask them to admit reasonableness and causation of medical bills and they denied it and presented no evidence challenging it, you may want to present that to the jury.  It shows the sharp contrast between the plaintiff and the defendant.  

Polarizing personal injury cases can be used effectively in your closing argument.  You lay out the common sense approach.  Lay out the basic facts.  You then contrast that with not facts but opinions of defense experts.  And these are defense experts who ignore all of plaintiff’s facts.  

The 12-Week Expert

In your opening statement, consider the following:

• Dr. G will tell you that for 6 weeks all of the treatment was related to the crash.
• So 6 weeks later when Ms. P goes to bed that night with the pain from the crash, it’s all related to the crash.
• But then Ms. P wakes up the next morning and the crash was just one big coincidence and completely and utterly unrelated you’re going to have to decide how reasonable that is.

For Cross-Examination, Consider the Following:

• Q:  Dr. G you admit that P had no problems in ~ years before this crash.
• A:  Well, none that we know of.
• Q:  Well sir. these folks have boxes of records…
• Q:  In past ~ years [walk across court room to march off the years]
• No complaints of pain,- No injections, No PT, No chiropractors, No orthopedic surgeons, No repeated visits to doctors, And there sure was no surgery, correct?
• On [insert date of crash], P is in a crash, D hit her from behind. You admit she was hurt in that crash, You say sprain but even you admit it hurt her back
• Over the next 6 weeks P went to: ER, Ortho, PT
• You agree that every bit of that treatment was because of the injuries she had from the crash caused by the D. And then you would have this jury believe that she went to bed one night- at about 6 weeks out from the crash caused by D- and woke up the next morning with the identical pain but now that pain had absolutely nothing to do with the crash.
• That pain was just a big coincidence, is that what you’re telling this jury??
• Plaintiff’s Lawyer:  Are you saying she does or does not have this pain?
• DME Doctor:  I am saying there is no reason it should be as bad as she says it is.
• Q: So are you saying she is lying to us?
• A: I can’t say that.
• Q: Why not?
•  A: I can’t read her mind.
• Q: So it’s possible she has the pain she is telling us about?
• A: Anything is possible, but not likely.
• Q: You believe it is not likely she has the pain she is telling us about?
• A: Right.
• Q: In other words, she is lying to us about it?
• A: I hate to use that term.
• Q: You use other terms to get across the same idea?
• A: [shrugs]
• Q: Why would she be lying for faking about her pain?
• A: Could be lots of reasons.Q: Do you think she is lying or faking to get money in this lawsuit?Lawyers often shy away from a question like this, but this is the heart of the case. Bring it into the light
• A: Could be.
• Q: Does a person who is lying or faking to get money in a lawsuit, get out of the car after the collision and say, “I am fine”?
• Q: Does a person who is lying for faking to get money in a lawsuit keep going back to work for weeks at a time?
• Q: Does a person who is lying or faking allow a doctor to put needles in her spine as part of the scheme to cheat?
• There are usually numerous facts inconsistent with a malingering theory. The DME doctor’s cross is the best place to showcase those facts. It doesn’t matter what the doctor answers, the questions, based on facts and testimony the jurors will have already heard, demonstrate how unlikely it is that the plaintiff is faking. As it dawns on the jurors how unlikely it is that the plaintiff is faking, the moral energy against the defendant increases. If you call someone a liar, you better prove it]
• After confronting the DME doctor with all of the favorable facts and testimony, it is now time to bring everything into focus
• Q: Is it your position that her husband is lying about her sleeplessness?
• Q: Is it your position that her friend, Jessica is lying about seeing her wince with pain?
• Q: Is it your position … [confront with each witness who gave useful testimony]?
• Q: So, Mrs. Robertson is either the greatest actress of all time, fooling all of her family and friends and coworkers, or they are all in on this scam with her? Is that your position?
• The defense position is finally clear. And it is obviously implausible. Worse, it is dishonest and craven. Bad enough that the defendant originally caused the injury’ now the defense is calling the plaintiff a liar to avoid responsibility. That is guaranteed to generate moral energy.

Direct Examination of Your Expert

• Consider hypothetical questions crafted to allow your expert to debunk a particular DME opinion.
• E.g., “In your experience as a treating orthopedic surgeon, do all sprains/strains caused by trauma get better in 6 weeks?”
• “What about when caused by an auto collision?”
• “Why not?”

Polarizing Person Injury Cases- Closing Argument

The polarization in closing argument is made even more stark because you can argue that not only is the defense discounting the plaintiff’s facts but the defense is saying that the plaintiff’s witnesses are lying.  They’re not telling the truth.  In other words they’ve all come into court to simply fabricate.  

Make the contrast sharp.  Make the line bright.

Closing Argument

Before closing argument, consider the following:
• Use any points developed from above techniques.
• “Dr. _________ is like a juke box:  Mr. Defense Attorney and other defense interests put money in and they get to hear what they want.”
• “After we’re done here, the defense expert doesn’t have to live with the consequences of being wrong.”
• “After we’re done here, the defense expert cashes a check and goes onto his next case.”

Malingering

Ask malingering questions.
• Q: “Are you suggesting my client is malingering?”
Don’t ask: “You’re not suggesting my client is malingering, are you?
• Q: “Malingering is a significant accusation, correct?”
• Q: Where in your report does it indicate that P was malingering?”
 

Call, or contact us for a free consult. Also for more info on personal injury see the Wikipedia pages. Also see the post on this site dealing with personal injury damages issues.