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


    In early posts we introduced the concept of Personal Injury as Tragedy. The elements of personal injury as tragedy are: Hero (an honest plaintiff), Adversity (the injury), Attempting to Overcome Adversity (necessary medical treatment), and 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 in today’s legal climate the jury is conditioned by insurance propaganda to mistrust the injured plaintiff and her lawyer. Often the fact we have an honest legitimately injured plaintiff is not enough. In todays legal climate we must recognize the jury may not care about our plaintiff.

    So what do jurors care about? The answer is themselves. In other words jurors consciously and subconsciously want to know “What’s in it for Me.” This means jurors respond when we demonstrate both 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.

    By villain we me an outlier defendant. 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 quality such that jurors do not see themselves engaging in defendant’s conduct which is seen as unsafe and stupid. (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 we need an outlier hospital that engages in conduct other hospitals would not do 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 potential patients.

    Outlier corporate defendants must be guilty of conduct that violates rules other like kind corporations would not and do not violate. It is also important for the outlier defendant to show no remorse and even better when the lawyer is stupid enough to try to justify or deny the conduct.

    This villain/outlier defendant concept has some likeness to the “reptile” concept as taught by David Ball and Don Keenan.  We get what Ball and Keenan teach and respect them. But we think the “reptile” is too simplistic as it fails to address the emotional part of our thought process which is where lasting memories and beliefs come from.

    The point is jurors need more than an injured plaintiff whenever the injured plaintiff appears to look OK. This is because most jurors do not care about our injured plaintiff. When jurors recognize a combination of outlier defendant conduct giving rise to hurting our plaintiff they see this as a problem that they should address. This is because the conduct is outside of what they would do and they could be harmed by this type of conduct. It is their civic duty to do something about it and this benefits them.




      December 1st, 2011

      Tragic Plot and the Personal injury Case


      In posts under Personal Injury as Tragedy we discussed how a personal injury case is like a tragedy. Aristotle in Poetics teaches the phenomena of tragedy and the essential 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.  The 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.

      This post adds to the series by introducing plot. To Aristotle plot is the most important element of tragedy.  According to Aristotle plot is bigger then the hero. Plot concerns how the universe works. Plot is universal truth. Plot is recognized as such by the audience (jury). In great tragedy they see the hero as a person like them subject to the plot. 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:

      1. 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.
      2. 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.
      3. The trial must be “of a certain magnitude,” both quantitatively (length, complexity) and qualitatively (seriousness with universal significance). Aristotle argues trials should not be too brief; the more universal and significant the meaning of the trial, the more the lawyer can catch and hold the emotions of the jury.

        February 23rd, 2011

        Direct Examination of Treating Doctor

        In a personal injury case one of the most important witnesses is our client’s treating doctor. The best course is to call the doctor live. Unfortunately, often the doctor will resist leaving his practice to testify because of the significant time commitment. When this is the situation the next best course is to DVD the doctor at his office. In this post we discuss direct examination of the treating doctor by way of DVD.

        Know the Doctor. Meet the treating doctor before the DVD direct examination. This should be done before the defense deposition. Before meeting thoroughly review client’s medical records including all records that predate client’s injuries. Go into the meeting with complete knowledge of the medical history of client. In the meeting cover any similar injury so the doctor is prepared to address it in the deposition and later during direct and cross examination. Cover the injury at issue.

        Conference Before Direct. Meet with the doctor again before direct examination. As with direct examination of any witness tell him what will be covered so he has a road map. Preparation is important but not at the expense of spontaneity. Direct examination should be conversational rather than rehearsed. Remind doctor camera is the jury.

        Outline for Direct Examination

        When in doubt stick to who, what, when, where, why & how questions. Rarely will you go wrong with this formula on direct. Make sure doctor is testifying on a more probable then not basis on opinions concerning nature and extent of injuries as well as conditions caused by event at  issue.

        Why Testifying? Begin by asking the doctor why he is here today. The first minutes of the direct examination are the most important. Thus, have doctor tell the jury he is plaintiff’s treating physician. He has been asked to testify on the injuries his patient (our plaintiff) sustained in the traumatic event, the course of treatment and how plaintiff is doing today.

        Background. Name, address, medical education, association memberships, board certification (include teaching positions if applicable).

        Nature of Medical Practice. Have doctor discuss type of patients he treats. Here you introduce the jury to the fact he treats traumatically injured patients, including patients with similar injuries to plaintiff. Also include questions about other areas of his medical practice. If doctor’s practice is limited to treating with no forensic examination component elicit this testimony. If there is a forensic component have him discuss the nature of this practice, and how it differs from a treating practice.

        Treating Client. When did he begin treating client. If before injury what type of treatment. Cover pre- injury treatment or lack of treatment so jury hears pre-injury condition from you rather then defense during cross examination.

        Treatment for Injury. Initial subjective presentation, examination (making sure you cover objective findings), diagnosis (making sure more probable then not caused by injury mechanism), and treatment plan.

        Subsequent Follow up Appointments. Illicit testimony about all significant appointments. Make sure you cover subjective presentation and examination findings  (which is objective evidence of injury). Cover referrals such as physical therapy and diagnostic studies. Elicit testimony on any significant medical record outside of your doctor. Also have doctor explain to  jury significant diagnostic findings and how they were caused by the injury.

        Necessity and Reasonableness of Treatment. Have doctor testify that all treatment he gave and referred has been necessary to address client’s injuries. Then get testimony that bills for necessary treatment are reasonable. Cover future medical care necessary to address continuing conditions as well as reasonable estimate of future medical costs.

        Client Today.  Cover disability or impairment rating based on AMA Guidelines, impact on activities, impact on employment, pain and suffering (past, present, & future).

        Conclusion. On a more probable then not basis is condition a result of the injuries sustained in our case (causation). Is client/patient an exaggerating faker or legitimately injured person dedicated to recovery.

          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 the plaintiff cannot overcome. Although the plaintiff may not admit to inability to overcome, the jury knows in a personal injury tragedy 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 15th, 2010

                  Elements of Personal Injury Tragedy

                  In a personal injury tragedy we have four elements:

                  1. Hero. As with all tragedy we must have a hero. This is our personal injury plaintiff. We will apply Aristotle in analyzing what makes a hero appeal to the audience (jury).

                  2. Adversity. The hero must be dealt adversity. Here we depart from Aristotle’s classic explanation of tragedy found in Poetics. The adversity  Aristotle identifies in Poetics involves a tragic flaw in the hero. The adversity in a personal injury case is the injury which is not a tragic flaw.

                  3. Attempt to Overcome Adversity. The hero must do everything she can to overcome the adversity (injury).

                  4. Inability to Overcome Adversity. No matter how hard the hero tries she will not be able to overcome the adversity because her injuries are permanent.

                  When these four elements are present in a personal injury case we have a tragedy. Recognizing these four elements and demonstrating them in trial is the key to successfully trying a personal injury tragedy case. In the next post we will consult Aristotle to analize the qualities of a hero that have appealed to audiences since ancient time and continue to appeal to juries.

                    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. The type of play that fits a personal injury case is tragedy. Research reveals Aristotle in Poetics sets forth what has become the classic principles of tragedy.

                    Plato and Aristotle argued on weather the study of tragedy was worth a philosopher’s time. Plato maintained all theatre including tragedy is simply entertainment that does not rise to the level of interest to a philosopher. 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 in the only way this can be done.

                    It is important to note tragedy is not staged or made up. 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.

                    In the next post we start to  analyze the elements of tragedy as taught by Aristotle and begin to apply them to a personal injury case that is worthy of the production of a trial.