May 10th, 2016

Personal Injury as Tragedy

Having learned from Simon Rifkind all trials are plays, (See Lessons from Simon Rifkind), I sought a theatrical formula appealing to audiences over time that mirrors a personal injury case. The type personal formula lies with tragedy. Research reveals Aristotle in Poetics sets forth what has become the classic formula for tragedy.

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 philosophic interest. 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 (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. This is why it makes sense for a personal injury lawyer to know the dynamics of tragedy, as when these dynamics are present we have a case worthy of the production of trial.

    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 tragedy at the highest level the plot controls the hero. The tragic plot must concern a universal truth that is greater than the hero. The audience knowing the universe in sequences of cause and effect sees in tragedy the hero must and will succumb to the adversity. The hero either does not recognize the adversity is greater than her or refuses to recognize it is greater. Either way the audience knows the adversity is too great to overcome. Audience members feel pity for the hero and fear the adversity could happen to them.

        To have a personal injury tragedy-a case worthy of trial- the plaintiff must have permanent injury. Permanent injury is the adversity plaintiff cannot overcome. Although plaintiff may not admit to inability to overcome, the jury knows she will never overcome the injury.

        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, who does everything in her power to overcome, but no matter how hard she tries she is a victim of fate beyond her control, the jury  sees the tragedy and will likely respond with fair compensation.

          May 21st, 2010

          Plaintiff Attempts to Overcome Adversity

           

          Aristotle tells us tragedy is the imitation of actions and of 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  a change of fortune and reversal or recognition or both. Reversal is a change to the opposite. Recognition is a change from ignorance to knowledge.

          According to Aristotle when the audience identifies with the hero seeing him in a cause and effect series of action, and the action involves reversal with accompanying recognition, the audience relates to the plot by having pity for the hero and  fear the type of 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 the injury can be overcome. Applied to the personal injury case this means the injured plaintiff must do everything possible to overcome his injury. This means the plaintiff must diligently seek treatment  to attempt to get back to his pre injury condition.

          The audience (jury) seeing the fact that injury is a reversal of fortune, and that the plaintiff recognizes he must do everything possible to overcome, wants the injured plaintiff whom they pity to overcome the injury. There is a correlation between the plaintiff striving to dig out of his injuries and the jury relating to him and having pity for him.

          In the next post we explore the last prong of the personal injury tragedy-inability to overcome adversity.

            May 20th, 2010

            Personal Injury Adversity

             

             

            The second element of personal injury tragedy is adversity. The jury will relate to a true to life, realistic, honest plaintiff. The jury knows, however, they are in the case because of adversity or harm to plaintiff. Without harm there is no reason to be concerned about compensation to the plaintiff. Thus, the jury needs to see adversity which in a personal injury case is injury.

            There must be a cause for the adversity (mechanism for adversity). This is the conduct of defendant and the force unleashed by defendant which is visited on plaintiff.

            At times plaintiff’s lawyer treats the mechanism of adversity as the harm. This is done when the lawyer involves plaintiff to too great of an extent in the cause of her injury. For example in a car collision case by dwelling on damage to the cars. Plaintiff usually needs to describe the mechanism for her injury, but once this is done, and the jury relates to injury being caused by the mechanism,  plaintiff’s focus needs to be directed to her injury.

            When plaintiff is allowed to focus on the cause of the injury she will often appear to have an agenda such as anger rather then dealing with the adversity. According to Aristotle the key to tragedy is change in fortune, and how the hero deals with the change. This occurs in a personal injury case when plaintiff is injured and must deal with her injury. When she dwells on the cause she redirects the jury’s attention from her injuries which is off plot.

            In the next post we will discuss the third element of the personal injury tragedy which concerns how the plaintiff deals with her injuries.

              May 18th, 2010

              Characteristics of the Personal Injury Plaintiff/Hero

               

              Aristotle discusses the traits of the tragic hero. To Aristotle one does not need to be an award winner or have recognized accomplishments to be seen as a hero. The key is be true to life and realistic.  There is no 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 members see 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.

              As we have previously discussed there are four elements to the personal injury tragedy. Although the hero may be worthy of consideration there must be a reason for the consideration. In the next post we discuss adversity- the element that introduces why consideration is worthy.

                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.