The fundamentals of taking an auto case to trial
You don’t represent the car
I had a tough case once that I was going to take to trial, where the property damage didn’t quite pass the “squint test.” If you have to squint to see the property damage, most people will not believe someone got hurt. That’s the test I’d been told applies to such cases. I was depressed. I was being sent to trial and I felt like I was going to a gunfight with a knife. How could I win?
But I was wrong. Although it is very true that a strong crash that injures people usually has dramatic property-damage photos to go with it, a reality of life is also the fact that people get hurt all the time in crashes that just “don’t look bad.”
Gary Dordick gave me a great piece of advice I’ve never forgotten and have shared countless times: the property damage isn’t the case; the person is. Although we know that, Gary’s idea was simple: voir dire the jury with the following question. “How many of you have ever been in a car crash where you, or someone you know and loved, was really hurt, hurt bad, but there was hardly any damage to the car?” This simple question can lead to the best dialogue in voir dire.
By taking this approach, you can get a jury that agrees that, even though they will see pictures of a car with hardly any damage, they will be open-minded on the case if they believe the plaintiff. Also, this can completely neutralize the defense’s biomechanical and medical experts’ claims that it is impossible your guy was injured in this low impact accident.
In simple terms, this is about focus, and not carrying into the courtroom the biases found in insurance adjusters’ evaluations or held by people who are cynical about car crash cases. Instead, you can keep the focus on the person you work for, the person who was injured by someone else’s carelessness.
We often forget the truth about car crashes and their violence. In a tenth of a second an energy pulse from a vehicle often weighing thousands of pounds goes through your client’s vehicle like lightning and it changes their body in ways that cause pain, tear nerves or muscles, cause chemical changes in them that leads to pain, and can dramatically alter their lives.
If your client is telling the truth and if you believe them, then don’t be defensive just because the pictures don’t look bad. It’s too late to dwell on that. Show the photos first, but focus on the person: that they were not prepared for this impact, and that they were hurt. Make the case about personal responsibility: the defendant was careless, the impact hurt the plaintiff, and you’re there for economic justice to get what’s fair − that’s all. Don’t be shy and don’t be defensive about it.
Millimeters don’t matter
So many lawyers and doctors get caught up with how big the millimeters of the bulging disc are on the MRI − is it effacing the cord, is there stenosis, yada yada yada. Don’t play that game. Your client has real chronic pain, and that needs to be your focus. He may never have big disc bulges or surgeries. Yet the injury happened; the pain is real.
I’m not suggesting that you ignore the hard medicine. Embrace it. But always keep the focus on the change in the life of the person you’re fighting for, not sterile images. One person can have blinding pain from a 3 mm. cervical disc bulge, while a different person feels nothing. Doctors treat pain, and the case is about pain. So when the defense is suggesting that the medical tests are not indicative of injury and the claimed injuries may not be real, put the focus where it ought to be, on the changes to that person’s life: Their lack of sleep, loss of focus, mounting medical debt − all the things that went haywire because of the crash.
The defense argument that proof needs to be in the form of an MRI or an x-ray to have real pain is simply false, and it’s a trap. You need to get the jury to understand that this case is about personal responsibility. Someone messed up, controlling a very large, heavy, injury-producing machine: a vehicle. There are rules of how you must control such a vehicle. And the injuries are apparent; have been since the crash scene. They are medically documented.
I find that the David Ball approach works really well: Balancing the harms and losses. You must get a jury in voir dire who will listen and be fair. You must get jurors who care about the truth, their role as jurors and doing justice.
Nick Rowley speaks of brutal honesty. I try that too. I try to put the jury in that car. Feel that crash, subtly. But if you can make it “real,” make it important, make it about justice, fairness, personal responsibility; you have a good shot. The best lawyers are sincere. They know their plaintiff and they literally fight for them. I did a trial with Mike Alder once, a true privilege. We cared so much for our lady who’d tripped over a curb stop. Not the biggest case in the world, but we won because we cared. And the jury saw that, from start to finish.
Doctors and their credentials matter
The medical records and the doctors are not choices we make. But who testifies at trial is your choice. Try to consider a very credible source. A treating doctor is often the best witness you could find. But many times, they have no experience in the courtroom and will not be cooperative in meeting with you, going through the exhibits, preparing for direct and cross-examinations, or understanding the standards of proof you must meet in the CACI instructions. Therefore, consider also choosing the “right” doctor to be the expert the jury believes.
Such an expert should be well-credentialed and have an independent background. If they do forensic work, their bias will be exposed, so the most credible doctors either work in hospitals and do some forensic work on the side, or testify for either side, without a perceived bias. If your doctor worked on a lien basis, embrace that fact and be the first to explain it. Let the jury know that the reason plaintiff’s doctor worked on a lien was because the plaintiff could not afford a doctor. Also, make clear that the plaintiff has to pay that lien, win or lose.
Tell the truth and the jury will appreciate it. There’s nothing to be ashamed of in selecting a great and independent expert, or helping your plaintiff get expert care on a lien. And practically speaking, in today’s world, such a medical bill may help you get justice along with providing real assistance.
Juries care about the credentials of the doctors and the experts. Know what they are and make it clear during trial how excellent your experts are.
Be thorough from the start. Get the ambulance report and the ER and hospital records. Do they corroborate your plaintiff telling you she was knocked out? Make sure she gets to the best experts early. Choose trustworthy, honest doctors who know how to diagnose accurately and the truth will serve everyone best. And demand to speak to the doctors after your clients see them. Talk with them. Get reports. Read them, act on the suggestions of the doctors and feel comfortable to challenge them on their findings if you have reasons to dispute them. You have a shared goal with them − to manage the medical evidence and make sure you’re all working towards accurate diagnoses.
There is an evolution to consider in the medical management. This can be staggered through the first year of handling the case. The key is to stay on the management, stay on the plaintiff and the doctors so you know what you have and don’t have, and then follow up. Management is the key. In the hypothetical case suggested it might go like this:
• Ambulance• ER Hospital• Initial consult with orthopedist• Initial consult with neurologist• Physical therapy• Pain medicines• Injections of pain medicine• Surgical consult for neck• Neuropsychologist evaluation• Potential for brain-imaging studies• Potential for cognitive behavioral assessments• Potential for other pain management techniques: acupuncture, chiropractic, etc.• Potential for physiatrist consult for global assessment of chronic pain etiology, effect of neck injury and TBI on whole person• Life-care plan project (LCP)• Vocational loss assessment subsequent to LCP
When you choose the medical expert, just know that their credentials, what they reviewed, their experience with you, their plaintiff vs. defense experience, their hospital experience, their demeanor − all matter. The medicine itself is critical, but who speaks to it is often the most important part of the damages case. If your expert(s) has more credibility, then the jury will listen much more closely.
Every trial lawyer has seen how jurors listen intently to the credentials of the expert. How organized do they appear to be? How well do they explain their understanding of the crash? How well do they use models, illustrations, other exhibits to educate and explain the injuries and treatment, and their chronicity? If you and the expert are prepared and organized, you’re well on the way to success. After that, the next critical aspect to this phase of a trial is making it interesting.
It is critical to understand and communicate, in an interesting way, with your medical experts, the moment of injury − to emphasize that transmission of force through the body, causing trauma. They must effectively explain why the person you’re fighting for was truly hurt. And they must tie this into the defendant’s conduct, the size and weight of the vehicles, and why people get hurt like this.
To do this right, there is no shortcut on the medicine. You need to understand the fracture or how soft tissue injuries happen, why they cause pain, how nerves are damaged, how they heal or don’t heal, etc. You must master the injury to have an effective dialogue about it with your experts. This will also allow you to be effective getting concessions from the defense expert on cross-examination too. If you don’t know why your client is suffering, how can the jury?
Effective exhibits matter
An excellent medical illustration will easily pay for itself. I like them actually drawn by a great medical artist who works with your main medical expert. Other sources can be found at CAALA Conventions, in the Advocate, or asking around the trial bar. Sometimes you can incorporate a great MRI into the illustration.
Sometimes you just use the great MRI and an ELMO. I like physical objects the best: a model of a knee, or a skeleton or a brain or whatever the injury is. If it is a pain syndrome, I like to draw what I call the cycle of pain, or show an illustration, which explains how pain causes mood changes, depression, fatigue, lack of good sleep, ineffective work, on and on. A vicious cycle.
Sometimes the exhibit is a great picture of the crushed car, the bumper itself, or an object crushed inside the car. The idea is, jurors think visually. You should remember that and incorporate it into how you show and tell during the trial. Keep things interesting.
It’s all about the plaintiff
If the plaintiff doesn’t come off as believable, you have a problem. If you don’t like them, will others? That said, one of the hard truths about what we do is that sometimes people with bad personalities, bad fashion choices or bad histories do get really hurt and the case has serious value. And you need to humanize them and get justice for them too. You have to be honest about who you’re fighting for and be straight about it. I’ve had to fight for justice for crackheads, felons, heck, even insurance adjusters. You need to be like Pope Francis in those situations: Embrace the humanity of it all.
What happened in the crash, what people saw, heard, smelled, or felt brings a case to life. Capture it before it fades and is lost. If there’s a video, seek to preserve it ASAP. The important thing to remember when you take the case on is, you have the opportunity to gather evidence now, and as we go, what we will need and utilize at trial. This means you need to get to the scene to take pictures before it changes, and to get your engineers there to do measurements and capture what is there to be captured. Find witnesses who saw the man whack his head. They will be critical at trial, if they exist. The fact they too were surprised by the violence of the hit, saw his legs buckle, saw the immediate swelling, saw him go to his knees to the ground, knocked out, woozy; that all proves the case to an extent if it exists. Jurors want to hear that stuff.
Your job as the lawyer and later the trial lawyer is a bit like being a playwright, or a movie director. You find the pieces, the people, and assemble them in a convincing order. Preserve the evidence before it disappears. You can’t go back and re-create it, so talk to the plaintiff, those with him, get reports of the incident, track down witnesses and preserve physical evidence while things are fresh. Or it’s gone. And that’s on you. Once you take the case, make a commitment to do it right. Build the blocks of evidence.
The impact must be injury-producing
If you don’t buy it, the jury won’t either. You’ll never settle the case and a jury is less likely to award reasonable damages if the accident doesn’t seem sufficient to produce the injuries you are claiming. While it’s true that people can be badly injured in low-impact accidents as discussed above, it’s much easier if the injuries you claim match up with the severity of the accident. If you find yourself constantly rationalizing the case, it probably isn’t one to take or keep. I once worked for a lawyer that had a “three flea” theory. If a case had too many fleas, it was a dog. Cases with minor impacts come with fleas.
Don’t waste the jury’s time
The best lawyer I knew was Charlie O’Reilly, whom CAALA named Trial Lawyer of the Year Award after his untimely death. Charlie was a great mentor to so many of us. One thing he always emphasized was to keep it moving; keep it snappy. If you only have ten minutes with the witness − it is important, it is useful − then keep it to ten minutes. The jury will appreciate it. Especially in today’s multimedia world with jurors on iPads, smart phones, so many things capturing their attention. They get bored quickly if you don’t keep the pace up and make things interesting. It is impossible to always be fast, and sometimes, like when you’re hammering on the damages, you want to take your time. But if you can move it along, do it.
Everything changed in a millisecond — pain!
The most important part of auto accident trials, if you’re going to win justice for your client, is to accurately convey the violence and trauma of the crash.
Most car crashes have an energy pulse that lasts about one-tenth of a second. In that moment, everything changes. Muscles, tendons, ligaments and bones may be distorted, broken and ripped due to the massive pulse of energy. You cannot emphasize that enough. Once body parts get ripped and broken, most doctors will tell you they never really are the same again. In a big crash, lives are radically changed. The real question should be did they get better, and if so, when? Explaining the trauma, what it did, and how it caused pain is critical. The healing process needs to be explained, but so should the pain process. And the costs of both!
I start talking about the degree and duration and effect of pain as soon as it starts dominating the conversation with the plaintiff. Pain generators such as certain activities should be noted. What brings it on? Sunlight? Movement? A particular time of day? What does it feel like? Burning? Stabbing? Dull? Achy? Can we estimate it on a 1 – 10 scale? There are so many ways to discuss pain. Use the Internet and Google “pain.” Educate yourself as a trial lawyer in this field on the subject of pain.
Just as important as understanding chronic pain is understanding pain management. You should always keep an eye on what is working, and what is not, while your client sees various providers in the course of his or her medical management. If shots don’t help, then stop them, of course. If a type of pain pill makes your client nauseous, make sure the doctor hears that and considers a change in medication, or another form of pain management. Basic stuff, but the key is paying attention and listening.
Time has a great effect on what pain does to someone. We all suffer with a sprain for a few days, maybe a week or two, sometimes. We all get a toothache. A paper cut. We all know pain. But what many of our clients know that so many in the general population will never know is, what happens when you have a lot of pain for a lengthy period of time? And what happens when the doctors tell you, “I have no solution. This is the way you’ll always feel”?
Chronic pain can rob people of their careers, change relationships, wear people down. It can also take away joy of life, take away the joy of favorite activities, become a gradual wearing-down of the psyche and the soul. Document this erosion of the person you first met when you signed the case up. Who knows about this? Find out!
Who knows about the accident? Who was this person before? What changed? Get your client to give you the names not found in police or incident reports. These could include close family members old enough to testify, co-workers, people they play sports with, play music with, quilt or play bridge with. The witnesses should do the major heavy lifting in effectively communicating pain to an insurance company in a settlement video or in a trial, because they have no dog in the hunt.
Once it’s broken, it’s never the same
This is a reality in so many cases about the people we fight for. They never can move their neck the same, or play tennis again, or maybe they can’t sit at a keyboard without pain. Sometimes they can’t sleep on their side, or even get a good night’s sleep without a pill or heating pad. Emphasizing the permanency of some injuries, what it costs for pain relief, what changes occurred in the job or the family, are the heart of a good PI case arising from a big car crash. You need to lay this foundation with your experts, and then add the human touches with the witnesses. Minimize your plaintiff whining and complaining, but maximize the emphasis on the changes.
Don’t oversell, or be oversold
Make sure you spend time with the witnesses, and trust your instincts in determining whether they’re trying to sell you crap to make their friend money, or whether they’re telling you the truth. Don’t let the plaintiff play you into making the case more than it is. That road costs you so much time and money, and ultimately leads to a crash and burn at a trial. Conversely, if the witnesses are credible, start thinking about order of presentation and where the emphasis needs to be in themes for trial. Don’t overstate things: pigs get fed, hogs get slaughtered.
Joseph M. Barrett served as 2015 President of the Consumer Attorneys Association of Los Angeles. He is a partner at Layfield & Barrett specializing in major, complex cases concerning catastrophic injury or death and impact litigation across the diverse fields of tort law including civil rights, insurance bad faith, product liability, professional negligence, vehicle and premises liability and road design. Mr. Barrett served the Consumer Attorneys Association of Los Angeles (CAALA) as the President in 2015 and is a member and supporter of the American Association for Justice.
Copyright © 2020 by the author.
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