There is no such thing as a perfect case. Whether it’s a forgetful witness or an unlikeable witness or some other flaw, every case has issues. How you deal with those issues, and how you help the jurors deal with those issues, can make all the difference. In this excerpt from Proving Damages to the Jury, author Jim Wren details six steps to help you turn a common problem issue — aggravation of a pre-existing condition – into a case strength.
I. Understand the Problem of a Pre-existing Condition
Before you can deal effectively with a pre-existing condition, you need to understand the source of the problem.
The Perception of “Damaged Goods”
There is a concern when presenting a case for aggravation of a prior injury or a pre-existing medical condition that the jury will discount the aggravation. As some jurors may be inclined to state it in deliberations, “Wasn’t the plaintiff already ‘damaged goods’ before she ever met the defendant?”
If the “damaged goods” viewpoint is left unaddressed, jurors are likely to undervalue an aggravating injury. Jurors need to be reoriented – starting in jury selection – and that reorientation needs to continue through final argument.
To help prime jurors to recognize that pre-existing conditions can be made worse by a subsequent injury, ask in jury selection, “Who has had experience with a medical condition that was made worse by what happened in a collision or by some other occurrence? Tell me more about that.” Then ask, “Should there be any accountability if one person is negligent and leaves another person worse off?” Let the jurors talk about it.
Ineffective Jury Instructions
The court typically will instruct the jury about damages for pre-existing conditions and their aggravation. For example, there may be a jury instruction similar to this:
Do not include any amount for any condition existing before the occurrence in question, except to the extent, if any, that such other condition was aggravated by any injuries that resulted from the occurrence in question. [State Bar of Texas, Texas Pattern Jury Charges, PJC 8.8 (2008).]
Notice that this instruction is stated negatively (i.e., “Do not include any amount … except to the extent …”). This is not the strongest form of instruction for the plaintiff. A positively-stated instruction will be better received. For example:
A tortfeasor is liable not only for damages resulting from direct and unique injuries inflicted on the victim, but also for damages resulting from the aggravation of the victim’s pre-existing disease, condition, or predisposition to injury. [Davis v. United States, 2009 WL 1455976, *31 (D. Hawaii 2009).]
The Restatement is a helpful starting point for research on this issue. See Restatement (Second) of Torts §461 (“The negligent actor is subject to liability for harm to another although a physical condition of the other which is neither known nor should be known to the actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct.”).
II. Turn the Problem Into a Strength, Rather Than a Weakness
(1) Gather All the Evidence and Put it All on the Table
How does a pre-existing condition become a strength, rather than a weakness of the case? First, be sure there truly is good evidence of aggravation of the injury by the defendant, hopefully supported by expert testimony. Then, throughout discovery and trial, be scrupulously honest about the condition that already existed and how the defendant’s actions caused that condition to worsen.
Carefully review current and prior medical and counseling records, and your client’s journal, diary, or Facebook page, if any. (You can count on the fact that the defendant will.) Talk to family members to be sure they also view the plaintiff’s current condition to be a result of the defendant’s conduct, not just a continuation of a pre-existing condition.
Defendants thrive on revealing pre-existing conditions as justifications for reducing or eliminating damages, and any appearance that the plaintiff is hiding or glossing over a pre-existing condition feeds the defendant’s power. That power is siphoned off when the plaintiff details the true facts, with careful attention to the condition that already existed, before showing specifically how the defendant made it worse.
(2) Prepare to Negate Other Causes
Next, continue to think like a defendant by considering what seemingly unrelated concurrent or subsequent events the defense might blame as the “real” reason, or at least “another reason,” for your client’s worsened condition. Prepare in advance for how you will negate these “independent events” as causes of the change.
(3) Emphasize Vulnerability
In communicating with the jury, start with the idea of vulnerability. Remind jurors that there are those among us who are more vulnerable — our children, our elderly, and our previously physically/ mentally/emotionally injured. As a society, we care about and seek to protect our children and our elderly. By associating the previously injured with children and the elderly — with the common denominator of vulnerability — you help jurors make the emotional leap into the value of protecting those among us who need protection (as we all will at some time or another).
Instead of trying to downplay the pre-existing condition, use it to show how important it was for the plaintiff to hold onto the health she had remaining, and how devastating it was for the plaintiff when the defendant took what (little) she had left.
(4) Explain the Fear of Rejection
Building on the concept of vulnerability, help the jury experience the fear of rejection (the fear of being written off as “damaged goods”) that people with a pre-existing condition naturally feel. Do not portray your client as a helpless victim. Instead, show your client as a fearful (and, therefore, courageous) fighter who is coming to the jurors with vulnerabilities exposed.
(5) Consider the Use of an Expert
Depending on the nature of the pre-existing condition, consider using an expert who can explain to the jury exactly why the plaintiff’s condition has made the effects of the defendant’s conduct so much worse in this case. Even better, in those cases in which the plaintiff and defendant were known to each other, have the expert explain why the defendant should have been aware, or presumably was aware, of the special vulnerabilities of the plaintiff and chose to engage in bad conduct anyway. The defendant who knowingly exploits vulnerabilities is the worst kind of defendant.
(6) Explain Attacks to the Jury
The combination of scrupulous honesty, vulnerability, and acknowledged fear of rejection may push defense counsel into unfamiliar territory. Should he still work to exploit the pre-existing condition? If, by force of habit, defense counsel unwisely chooses to do so, you will have the opportunity to tell the jury in closing that your client has been attacked, just as she feared, but they — the jurors — will have the last word about what is fair, just, and decent.
Jim Wren is a trial lawyer with more than 30 years of trial experience. He is board certified nationally in Civil Trial Advocacy by the National Board of Trial Advocacy, and by the State of Texas in both Personal Injury Trial Law and Civil Trial Law. Mr. Wren teaches trial procedure and advocacy at Baylor Law School.
Proving Damages to the Jury is a roadmap for dealing with the damages aspect of your case, from the initial client interview through closing argument. Built on a solid foundation of current scientific research and decades of in-the-trenches trial experience, Proving Damages to the Jury will help you understand juror biases and motivations; develop persuasive evidence of damages; and present that evidence in a way that resonates with jurors.