Advanced Strategies for Defending Complex Brain and Spinal Cord Cases[dagger]

FDCC Quarterly, Winter 2006 by Montgomery, C Barry, Nahrstadt, Bradley C

I.

INTRODUCTION

Few cases prompt greater cause for concern among defense counsel than those involving brain damage or spinal cord injury. Every aspect of these cases is troublesome. They always concern devastating injuries, usually involve horrific accidents, mistakes, or product malfunctions, and often center around the conduct of large corporations, hospitals, or other entities. The stakes are high and the possibility of a disastrous outcome is even higher.

The key to defending high-stakes brain and spinal cord injury cases is to recognize what works and to apply those principles consistently. Decades of trial practice have taught that specific techniques and trial strategies can either reduce the verdict awarded to a seriously injured plaintiff or even, in some cases, eliminate that award altogether. What follows are suggestions for containing or eliminating damage awards in complex brain and spinal cord injury cases.

II.

NEW DEVELOPMENTS IN TRIAL TECHNOLOGY THAT MAKE THE CASE COME ALIVE

This is an age of instant communication. It is the age of television, lap top computers, and palm pilots - an age where a barrage of information is delivered in neatly packaged sound bites in all spheres of life. Today's jurors are accustomed to obtaining and receiving information in visual form. As a result, jurors today expect - and may even demand - that evidence be presented to them through some medium other than the spoken word of a witness or the written word of a document.

In this environment, the PowerPoint program offers an effective way to illustrate quick nuggets of information. PowerPoint is included in the Microsoft Office software suite and is easy to use. This software allows the trial attorney an opportunity to encapsulate important information about the case theme, plaintiff's damages, and liability issues in creative and visually appealing slides. When counsel's personal computer is connected to a projector and the slide images are projected onto a big screen in the courtroom, jurors become stimulated by the important information they need to decide the case.

TimeMap represents another popular graphics tool. TimeMap is a program which allows the parties' lawyers to analyze and maintain control over the important data in a case. TimeMap allows for the creation of a visual chronology of the important information, presenting that information in a timeline format. This type of visual display is highly effective when the case revolves around a particular chronology or sequence of events. Using TimeMap presents jurors with a "snapshot" version of the events and offers them a tangible display of those facts defense counsel chooses to emphasize.

One of the most innovative technologies developed in recent years is a computer system on which trial exhibits can be imaged, called up and displayed on monitors set before the judge, jury, and opposing counsel. Unlike poster board counterparts from days gone by, computerized versions of the exhibits can be highlighted, excerpted, and enlarged by this system as witnesses testify. Different versions of such trial presentation software include Trial Director and Sanction.

Perhaps the most effective way to present evidence to the jury, especially in a case involving complex issues of liability or damages, is through use of computer animation. Computer animators can generate lifelike images of accident scenes, product composition, and mechanics of injury, to name but a few. Because it is difficult for a jury to visualize in three dimensions, computer-generated animation can help jurors see and understand evidence in the manner most conducive to the defense perspective. Another key advantage in using computer-generated animation is that images can be modified with a few short key strokes. If the judge has a problem with the way something is depicted, or if the evidence changes and the animation must be changed as well, the changes can be made quickly and the evidence preserved for the jury.

III.

DEVELOPING A VIBRANT TRIAL THEME

Every experienced trial attorney knows that jurors need some way to organize and process all of the information they receive at trial. And research shows that the vast majority of people organize new information in a story format over any other.1 As a result, the defense attorney must organize or create a story to capture the jurors' developing interest. This story also must have a theme - a theme that will resonate with the jurors and move them to the defendant's side.2

Consequently, the defense must develop a story of the case that is "above the evidence" and fits with the psychology, emotions, and humanity of the case.3 The defense must discover not only the "who," "what," "when," and "where" of liability and damages, but also the "why." Knowing the "why" unlocks an understanding of all facets of the case and allows the defense to craft a presentation responsive to the likely emotions of the jury.4 It also allows defense counsel an opportunity to make the "courtroom facts" consistent with the "real world facts" so that jurors can deliver a defense verdict.5