Catastrophic injury cases present special challenges. They are not only quantitatively but qualitatively different at every phase from other personal injury cases in how they must be prepared and tried and in the time and resources that must be devoted to them. Just as importantly, because the catastrophically injured exist in a world that most people never have to experience, jurors may have difficulty identifying with them or appreciating the impact of the injury on their lives and families. The attorney’s critical task is to break through this barrier so as to be able to educate and persuade the jury. To do this effectively requires an understanding and empathy that the attorney can develop and communicate only through a close and trusting working relationship with the client.
As with any other injury case, the underlying accident event must be fully understood so that fault can be clearly established at trial. You must be able to demonstrate that your client was a victim of the defendant’s failure to act reasonably or responsibly in order for the jury to be properly motivated to award the damages called for by the magnitude of the injury. This entails a comprehensive investigation of the event, usually with the assistance of professional investigators, as well as the early involvement of liability experts or, in medical negligence cases, standard of care experts.
When representing a catastrophically injured client, one of the major goals of the factual investigation is to allow you to fully portray the horror of what your client experienced. You want to be able to, in effect, expand time as you recreate the event at trial. While the event may have unfolded in minutes, it needs to be painstakingly reconstructed, moment by moment. You do not want to just describe the incident, but rather have the jurors confront it as experienced by your client so that they can understand its full impact.
Of course, you must speak to all witnesses to the event who may have made critical observations. This includes first responders, such as police, fire personnel and EMTs. It is important to obtain and preserve the observations of these witnesses and their initial reactions to the injury and its severity. These things may be difficult to hear or to speak about, but it is essential that they be vividly described at trial. Do not overlook any available documentation of the event that will help you convey its horror to a jury. In a recent case in which two of our clients suffered devastating burn injuries, we were able to obtain the taped 911 calls of anxious neighbors reporting the event, among which, as we discovered to our surprise, was a cell phone call from one of our clients who went on to die of his injuries. The phone line remained open and the horrific screams of both clients were recorded, providing a dramatic, first-hand record of their experience of the event that could never have been recreated or duplicated.
The investigation and documentation of the event and its aftermath will also be critical to your liability experts’ ability to reconstruct the event for the jury, including the use of modeling and computer video animations. Such graphic reconstructions can also help to convey the horror of the event. These, especially computer animation, can be very expensive, but given the high stakes in these cases, it is difficult to justify not doing them if they will be of help.
Beginning at the earliest stage of your involvement in the case, you must work toward establishing a relationship of trust with your client so that she can be open with you about her struggles and what she is going through, physically and emotionally, as she tries to recover from a life-altering injury. Spend as much time as possible with your client and her family. Candor and willingness to share intimately needs to be encouraged and nurtured throughout your representation.
You must also learn from your client, as well as family members, friends and co-workers, as much as you can about how the client lived before her life forever changed. What activities did she enjoy? What were her plans for the future? Evidence of your client’s pre-injury life establishes a baseline and will serve as a lens through which the jury can begin to see what has been lost due to the injury. Family photographs of holidays and celebrations, cards and letters, and home video of the client’s pre-injury life should be obtained and reviewed to help you better understand your client and to be available for use in the case.
It is important to meet with the physicians and others who treat the client throughout the course of hospitalization and rehabilitation. Obviously, you will need to be able to work with them right through preparation for trial. Nurses, therapists and other non-physicians who cared for your client during the hospitalization should not be overlooked as they are involved in the day-to-day care in a way that the physicians typically are not, and therefore can often provide more detailed and compelling observations of your client’s initial struggles with the injuries and reactions to often painful treatments. Their detailed testimony about the activities of daily living with which your client needed assistance, such as wound care, bathing, toileting, feeding and dressing can be very powerful.
Make sure that arrangements are made to document your client’s injuries and medical treatment with photographs and video, done professionally or by capable family members throughout her course of medical treatment and rehabilitation. The client’s struggles with the difficult work of recovery should be developed in unflinching detail. One of the most compelling pieces of evidence I ever obtained was video of an occupational therapy session that showed my brain-injured client breaking down in tears of frustration as she struggled to regain the ability to communicate and do simple tasks.
Of course, be proactive throughout your involvement in the case. Proper representation of the catastrophically injured client will often require your advice and advocacy to assist them in obtaining necessary referrals to specialists to help assure adequate medical and psychiatric care, as well as navigating through the maze of medical insurance and disability programs that may be available, including MaineCare, Medicare, Social Security and private insurance.
When the client has reached a medical end result, you need to be able to explain the nature and extent of the permanent injury and how it will continue to impact functioning and quality of life in the future. Showing the “negative space” left in the lives of others by the client’s injury can be a most effective way of communicating the injury. It will be necessary to use vocational rehabilitation, life care planning and economic experts. Get them involved early.
At this stage, you should consider making a so-called “day in the life” video that depicts the challenges that your client will continue to face using the material generated from the outset of your representation. These are admissible, and highly effective, as demonstrative evidence to support the live testimony regarding how your client’s life has been permanently altered by the injury, and are invaluable in settlement discussions and mediation. For example, video of a blind client’s struggles with mobility; a brain-injured client’s difficulties with communication; a spinal cord injured client’s challenges with ambulation and/or wheelchair use; or an amputee’s use of prostheses will be more effective than testimony alone.
Although often counterproductive in routine personal injury cases, loss of consortium claims in catastrophic injury cases typically have significant value when properly presented and should be worked up with the same attention and care as the underlying injury case.
In summary, all of your efforts from the first day should be narrowly focused on preparing to try the case and how most effectively to present it to a jury. The familiar trial lawyers’ adage that says “work a case up for settlement and you will end up trying it; work it up for trial and you will end up settling it” is never more true than in the catastrophic injury case. While trial may be necessary to obtain the compensation your client deserves, as the adage suggests, your thorough preparations will maximize the possibility of settlement by getting you ready for trial, thereby allowing you to force the attorney and/or adjuster on the other side to confront the ultimate question of how a jury will respond to the evidence you will present.
Most importantly, we can never lose sight of how much is at stake for our catastrophically injured clients and our ability to impact and improve their lives.