July 21st, 2021

Plaintiff Attempts to Overcome Adversity

 

Aristotle teaches tragedy is the imitation of action in life. Well-being (health) and ill-being (injury) “reside in action” with the goal of life being activity. “People achieve well-being or its opposite on the basis of how they fare.” Poetics (The Primacy of Plot). The “plot” in tragedy concerns the action and how the hero fares.

There are two types of plot according to Aristotle- “simple” and “complex.” Complex plot is a higher level tragedy. In a simple plot there is only a change of fortune. In a complex plot there is change of fortune and reversal or recognition or both. Reversal is change to the opposite. Recognition is change from ignorance to knowledge.

According to Aristotle when the audience identifies with the hero seeing a cause and effect series of action, and the action involves reversal with accompanying recognition, the audience relates to the plot with pity for the hero and  fear the change of fortune can happen to them. This is tragedy at the highest level.

In a personal injury case the change of fortune to the hero is the injury. The recognition is  what happens next.     This means how the injured plaintiff reacts. The audience wants to see the hero doing everything she can to overcome the adversity. The recognition can be of a profound life changing result. The audience (jury) seeing the reversal of fortune, and  plaintiff recognition she must overcome, wants justice for plaintiff.

    July 1st, 2021

    Personal Injury Adversity

     

     

    The second element of personal injury tragedy is adversity. The audience relates to a true to life, realistic, honest hero.  In tragedy there must be  adversity or harm to the hero. Without harm there is no reason to be concerned about our hero. The audience must see adversity and the hero overcoming it to continue his quest.     

    There must be a cause for the adversity. This is the action, force or villain unleashed on our hero. The audience will want to address the adversity when it violates a universal truth or the hero’s quest. The reaction is to prevent this from happening again and address the impact of the adversity.

    The hero should understand the mechanism for her adversity. Once this is done, and the audience relates to the adversity,  the hero’s focus is overcoming the adversity.  According to Aristotle the key to tragedy is change in fortune, and how the hero deals with the change. It is important for the hero to focus on the effect rather than the cause. Focus on the cause redirects  the audience’s attention from the effect which is off plot. In high level tragedy the audience is ready to deal with the effect.

     

      June 18th, 2021

      Characteristics of the Personal Injury Plaintiff/Hero

       

      Aristotle discusses the traits of the tragic hero. The hero does not need to be an award winner or have recognized accomplishments. The key is be true to life and realistic.  There is a lack of pretense. The audience needs to see the hero as appropriate to his or her position in life. There is no exaggeration, and the hero is consistent in his actions.

      Applied to a personal injury case this means the plaintiff is an honest person. There is never overstatement. What is important is honesty in pursuit of deliberate choices. In other words the hero has thought out his goals and direction in life. He is pursuing a deliberate path. With candor and straight forwardness he admits failure and success.

      In a tragic play the audience sees the realistic person as they see themself. In a personal injury case the same phenomena occurs with the jury when they see plaintiff as a true to life person who tells it like it is. This is appealing and worthy of consideration. In tragedy the hero must face adversity. Once the audience relates to the hero they relate to the hero facing adversity.

       

        June 1st, 2021

        Personal Injury as Tragedy

        Having learned from Simon Rifkind all trials are plays, I sought a theatrical formula appealing to audiences over time that mirrors a personal injury case. I found  Aristotle in Poetics sets forth what has become the classic formula for tragedy and it fits a personal injury case.

        Plato and Aristotle argued about whether the study of tragedy is worthy of a philosopher’s time. Plato maintained all theater including tragedy is  entertainment not rising to the level of philosophical interest. Aristotle disagreed. Aristotle argued tragedy at the highest level involves the audience. The audience feels the tragic plot in cause and effect sequences that mirror universal truth.

        In high level tragedy two things happen to the audience. First, they pity the tragic hero. Second, they fear the tragic result (the adversity) could happen to them. Aristotle maintains when this occurs the audience experiences a cathartic event – a purification or spiritual renewal. According to Aristotle, when members of the jury identify with  plaintiff, pity the tragic result dealt plaintiff, and fear the result could happen to them, a catharsis occurs in the verdict as the jury rights the wrong.

        It is important to note tragedy is neither staged nor made up. As taught by Aristotle tragedy represents reality.  People recognize tragedy and if possible want to remedy tragedy. When a personal injury case has the dynamics of tragedy we have a case worthy of trial production.

          April 10th, 2021

          Lessons from Simon Rifkind

          Beginning in law school law school I knew I wanted to be a trial lawyer. This meant studying trial lawyers. I started with Simon Rifkind. From Rifkind I learned trials are plays.

          Simon Rifkind was a Wall Street lawyer and partner in the firm Paul, Weiss, Rifkind. He was appointed by Franklin D. Roosevelt, as Federal Judge, Southern District of New York

          (1941-1950). He voluntarily left the federal bench because he was bored with poor lawyering which, according to Rifkind, was the rule rather than the exception. He returned to trying cases.

          Rifkind’s passion was trying cases. He was a renaissance trial lawyer who tried different types of cases. He tried cases in various areas to learn new aspects of  life.

          Once a case goes to trial, Rifkind knows the dynamics of trial take place. To Rifkind, a trial is a play. There is a hero (usually our client) and a villain (usually the opposition). The jury is the audience, the judge, lawyers, and witness actors. The lawyer has a unique position as he is both an actor and producer of the play. Rifkind teaches, trials like plays, must have a theme. The theme should announce the client’s cause with the ends of justice.

          Rifkind is right, a trial is like a play. From a client standpoint, the biggest mistake occurs when the client appears to be too involved in trying the case. This is off plot. The lawyer is the person who is expected to try the case. When the client appears over involved the client loses the image of the hero and becomes a wanna be lawyer. 

          The lawyer is like a duck, calm above the water, below the water paddling to stay afloat. The lawyer keeps a cool demeanor in the face of adversity occurring at trial. The lawyer shows professionalism to opposition counsel, witnesses, and the judge. The lawyer is neither a bully nor out of control. There is nothing wrong with destroying an opposition witness, and this at times needs to be done, with jury permission and professional firmness.

          It is important to recognize that unlike a play the stage in trial is anywhere a juror may observe the client, lawyer, or witnesses. Rifkind would agree to dress and act like going to and being in church at all times anywhere in or even near the courthouse. Lack of professionalism observed by a juror harms the case.

            November 20th, 2014

            The Villain/Outlier Defendant

             

             The elements of personal injury  tragedy are:  1) Hero (honest plaintiff); 2) Adversity  (injury); 3) Attempting to Overcome Adversity (necessary medical treatment); and, 4) Inability to Overcome (permanent injuries). This formula emphasizes the injured plaintiff.

            Although the formula is essential for the jury to relate to our injured plaintiff it fails to recognize a legal climate where the jury mistrusts the injured plaintiff and lawyer. We must recognize the need for more than a tragic plaintiff.

            We all care about ourselves and jurors are no exception. jurors consciously and subconsciously want to know “What’s in it for Me.” Jurors respond when we demonstrate the elements of tragedy and a reason to compensate plaintiff that benefits jurors. Here the introduction of a villain completes the equation that leads to a willingness to act through a decent verdict.

            An outlier defendant is a villain.  Outlier defendants in a car collision case include DUI drivers, drivers texting going into the crash, and high speed drivers. Drivers doing something going into the collision that has no redeeming value to the community as the conduct is unsafe and dangerous. (The DUI defendant is made known to the jury in an admitted liability case when plaintiff has anxiety, PTSD, or a psychological reaction based on defendant’s outlier conduct).

            In a medical malpractice case against a hospital an outlier hospital  engages in conduct other hospitals would not because of patient safety considerations. The same is true when defendant is a medical doctor. The jury must see the doctor as one whose conduct is dangerous to plaintiff and to other patients in the community.

            Outlier corporate defendants are guilty of conduct that violates rules ethical corporations would not violate. When the outlier defendant lacks remorse and even better when defense tries to justify the conduct a significant verdict will result.

            The combination of an outlier defendant harming a tragic plaintiff results in a problem jurors  as the voice of the community must address. The conduct is outside of community standards and jurors as the voice of the community vote with their verdict. 

             

             

             

              December 1st, 2011

              Tragic Plot and the Personal injury Case

               

              Aristotle in Poetics teaches the phenomena of tragedy and the elements of a tragic play. Applied to a personal injury case we know we must have: a hero, who sustains adversity, does his best to overcome the adversity, but no matter how hard he tries he will never fully overcome.  Our client is the hero. The adversity is the injury. Treatment is trying to overcome the injury. Not being able to fully recover is permanent injury.

              Aristotle teaches plot distinguishes great tragedy.  Plot is bigger than the hero. Plot concerns how the universe works, plot is universal truth. Plot is recognized as such by the audience (jury). In great tragedy the audience sees the hero like them subject to the universal truth. According to Professor Barbara McManus, Outline of Aristotle’s Theory of Tragedy, in Poetics:

              Aristotle defines plot as “the arrangement of the incidents.” This is not the story itself but the way the events are presented to the jury. This is the structure of the trial. Personal injury trials that depend on a tightly constructed cause-and-effect chain of actions are superior to those that depend primarily on the plaintiff.  Trials that meet this criterion have the following qualities:

              The trial must be “a whole,” with a beginning, middle, and end. The beginning starts the cause-and-effect chain. In the beginning causes are downplayed and effects are stressed. The middle flows from earlier incidents and causes and effects are stressed. The end results from the preceding events. Here causes are stressed and effects downplayed. The end solves or resolves the problem revealed at the beginning.

              The plot must be “complete,” having “unity of action.” By this Aristotle means the trial must be structurally self-contained, with the incidents bound together by internal necessity, each action leading inevitably to the next. The worst kinds of trials are “‘episodic [where] acts succeed one another without probable or necessary sequence.” The only thing that ties the case together are events that happen to plaintiff. Events that occur to plaintiff must have a fated connection to the universal truth. While the lawyer cannot change the facts that make up the case, he “ought to show invention of his own and skillfully handle the traditional materials” to create unity of action in the trial.

              The trial must be “of a certain magnitude,” both quantitatively (efficient and understandable) and qualitatively (universal significance). Today Aristotle would agree trials should be straight forward and efficient showing universal truth and significant meaning so the audience responds by implementing the universal truth. 

                May 28th, 2010

                Plaintiff Cannot Overcome Adversity

                 

                Definition of tragedy includes:

                A serious drama describing a conflict between a (hero) and a superior force and having a sorrowful conclusion that elicits pity or terror. (Webster)

                This definition stems from Aristotle and Poetics. Aristotle teaches in  high level tragedy the plot controls the hero. The tragic plot must concern a universal truth greater than the hero. The audience knowing the universe in sequences of cause and effect sees the hero will succumb to the adversity. At the highest level the hero continues on accepting and challenging his new situation.Although the audience relates to the positive hero in his new situation, nonetheless,  it pities the hero and fears the adversity could happen to them.

                To have a personal injury tragedy case worthy of trial- the plaintiff must have permanent injury. The key is how the hero reacts to the permanent injury. There must be a valiant effort to overcome, then an acceptance of the new situation, followed by positive change.

                The jury knows they have the ability and the duty to do the only thing they can  to remedy the adversity- provide fair compensation. When the jury sees an honest true to life person, who has been dealt adversity, does everything in her power to overcome and then adapts to the new situation moving forward despite being a victim of fate beyond her control, the jury  sees the tragedy and will respond with fair compensation.

                  May 13th, 2010

                  Personal Injury as Tragedy

                   

                  Having learned from Simon Rifkind all trials are plays, I sought a theatrical formula appealing to audiences over time that mirrors a personal injury case. I soon found tragedy. Research reveals Aristotle in Poetics sets forth what has become the classic principles of tragedy.

                  Plato and Aristotle argued wheather the study of tragedy was worth a philosopher’s time. Plato maintained all theatre including tragedy is  entertainment that does not rise to the level of philosophical discussion.  Aristotle disagreed. Aristotle argued tragedy at the highest level involves the audience. The audience sees the tragic plot in cause and effect sequences that mirror universal truth. In high level tragedy two things happen to members of the audience. First, they pity the tragic hero. Second, they fear the tragic result can happen to them. Aristotle maintains when this occurs the audience experiences a cathartic event- a purification or spiritual renewal.

                  Applied to a personal injury case, when tried at the highest level, the jury identifies with plaintiff and pities the tragic result dealt plaintiff. The jury also fears the result could happen to them. The catharsis occurs in the verdict as it rights the wrong felt by the jury.

                  It is important recognize tragedy must be real. As taught by Aristotle tragedy represents reality. Tragedy happens in life. People recognize tragedy and if possible want to remedy tragedy. This is why it makes sense for a personal injury lawyer to study the dynamics of  tragedy. When these dynamics are present in a case it is worthy of the production of a trial.