Plaintiff as a Compelling Witness in a Slip & Fall Case
Proving a Slip and Fall Case: Help Your Client Give His Best Testimony
Frequently, the only witness to a slip and fall incident is the victim himself. This makes the plaintiff’s testimony critical to the success of the case. If the plaintiff cannot articulate an accurate, detailed description of the scene, as well as a plausible mechanism of injury, the claim is at risk of being dismissed on summary judgment or rejected by a jury.
Experienced personal injury attorney, Jim Lawlor, offers this advice for helping your client make his strongest case at deposition and trial*.
Your Client’s Deposition
Do not underestimate the significance of the plaintiff’s deposition. If you do not take the time to prepare your client for this important event, you may walk into the deposition with a good cause of action and walk out three hours later with a worthless claim.
Well in advance of the deposition, visit the scene with your client to help him visualize all aspects and details of the location, including, e.g., the nature of the surface on which he slipped; the lighting; the overall dimensions of the space; and possible sources of distraction. Review detailed photographs of the scene, about which your client may be questioned during the deposition. In addition, because slip and fall cases often hinge on whether the defendant had notice of the hazard and whether the plaintiff did or failed to do something that led to his injuries, you must prepare your client to answer these troublesome questions defense counsel is sure to ask:
Q: Did you notice the [defective condition] before you fell?
Q: If not, where were you looking before you fell?
Q: If so, why did you deliberately encounter the dangerous condition?
Q: Do you have any evidence that my client [the defendant] created the [defective condition]?
Q: Identify any evidence you are aware of that makes you believe that my client knew of the [defective condition] before your incident?
Q: Where were you standing when you began to lose your balance?
Q: Which of your feet slipped first, your right or your left?
Q: Did it slip forward or backward, up or down?
Q: What did your other foot or leg do?
Your Client’s Trial Testimony
In most slip and fall cases, the smartest strategy is to have your client testify last, with your case all but proven before he takes the stand. Your client’s job, then, is to describe, in an understated fashion, his daily life before and after the occurrence. If you have elicited compelling objective proof of a serious injury, your client will endear himself to the jury if he humbly describes his life before the slip-and-fall event, and demonstrates that he is doing all he can to get on with his life, not idly dwelling on the past and what he has lost.
Begin your direct examination with a series of questions that allows your client to introduce himself to the jurors and get comfortable on the witness stand (e.g., questions about his family status; education and work history). Once that is accomplished, turn your attention to the events leading up to the injury. As you prepare for trial, set aside time to review the outline of the direct examination with your client. In most slip and fall cases, that examination will go something like this:
Q: Mr. Plaintiff, I would like to direct your attention to [the date of the occurrence]. What, if anything, unusual occurred on that day?
Q: Describe what happened to you.
Q: Where were you when the incident occurred?
Q: Why were you on defendant’s premises?
Q: Where were you standing when you began to lose your balance?
Q: Please explain to the members of the jury how you fell.
Q: Can you describe anything unusual [the condition] which you observed near your body after your fall?
A: [I observed a puddle of water.] [I noticed a grape.]
Q: What else, if anything, did you observe about the condition? [This is your client’s cue to help establish the critical element of notice by including anything truthful that would suggest the condition was present for an appreciable period of time. For example:
A: [The puddles of water had dirty streaks and footprints running through them.] [The grape was smashed and streaked into bits, and was in the vicinity of many other smashed grapes on the floor near the store’s grape bin.]]
Q: Did you notice the [defective condition] before you fell?
A: No.
Q: Were you distracted by anything on the premises before you fell?
A: Yes. My eyes were focused on bright signs attached to store displays.
Q: What did you notice about yourself after you fell?
Q: How did you feel at that time?
Q: What if any medical treatment did you seek? [Take the plaintiff through all his treatment, including how he felt prior to and after any surgical procedures.]
Q: How far is [each doctor’s office] from your home?
Q: How long did you usually have to wait to see Dr. ____?
Q: Do you know the amount of your medical bills to date? [Be sure to have a clean copy of redacted bills — that is, bills showing only the charges and not any payments by insurance companies, which are considered collateral sources and not admissible at trial.]
Q: Tell us about your health prior to the occurrence.
Q: What were your favorite hobbies and leisure activities prior to the occurrence?
Q: How often did you participate in these activities prior to the occurrence?
Q: Since the occurrence, have you had the opportunity to engage in any of these hobbies or activities?
Q: Tell us what your rate of pay was at the time of the occurrence.
Q: How many hours per week did you work?
Q: How much did you earn in the twelve-month period prior to the occurrence?
Q: In that one-year period of time prior to the occurrence, did you ever see a physician or miss any work due to any physical problem with your [part of body injured]?
Q: Have you been able to resume your job duties?
Q: How many days of work did you miss following the occurrence?
Q: Do you notice any pain during work that you did not experience prior to the occurrence?
Q: In that one-year period of time prior to the occurrence, were your hobbies or activities ever affected due to any physical problem with your [part of body injured]?
Q: Have you resumed your hobbies or activities?
Q: Do you notice any pain when engaging in your hobbies or activities that you did not experience prior to the occurrence?
Q: Can you tell us about any progress you have noticed in your condition since the occurrence?
Q: Do you notice any difference in your relationship with your spouse since the occurrence?
Q: Do you notice any difference in your relationship with your children since the occurrence?
*This post is an excerpt from Medical Evidence, by James H. Lawlor, III and Thomas H. Quinn.
Medical Evidence is a unique blend of law and medicine. In this single volume text, you receive:
- A clinical atlas, which provides a detailed, plain-English medical review of human anatomy, including 15 different body systems.
- More than 80 medical case studies explaining how to handle the medical issues in common injury cases, including, for example: whiplash following low-impact collision; facial lacerations from a dog attack; brachial plexus injury during delivery; and multiple leg fractures resulting from a bicycle-automobile accident.
- More than 450 professional medical illustrations, most in four-color, which you can use as trial exhibits or as demonstratives in support of a settlement demand or mediation brief.
- Practice-oriented litigation chapters that explain how to use medical evidence to maximize your client’s recovery in a traumatic brain injury case; an auto accident case; and a premises liability case.
James H. Lawlor, III is a trial attorney in Chicago. He specializes in litigating catastrophic Plaintiff’s personal injury and wrongful death tort cases, including brain injury, vehicular collision, railroad, premises liability and construction cases. Mr. Lawlor has been a member of the Illinois bar since 1987. He is a past recipient of the Illinois State Bar Association’s prestigious Lincoln Award for Legal Research and Writing. He has lectured before the Illinois Trial Lawyer’s Association on the topic of Proving the Mild Traumatic Brain Injury, and published numerous articles on injury-related topics in the Illinois Bar Journal.
Thomas H. Quinn is the Assistant Dean for Medical School Admissions, and formerly a Professor of Anatomy, at Creighton University School of Medicine in Omaha, Nebraska. He has lectured on anatomy and personal injury topics for attorneys throughout the country, and consults and testifies on medical issues.
