I just finished a three day seminar taught by Bob Dawson and Mark Wagner. Both are successful personal injury lawyers. Both are graduates of The Gerry Spence Trial College. Although the seminar was not part of the Gerry Spence Trial College, it is clear both have changed how they practice law based on what they learned at The Trial College.

Discover the Story. At the seminar Bob and Mark stressed representation of a personal injury plaintiff cannot be done at the highest level unless the lawyer takes the time to discover the client’s story. The client’s story consists of the emotional components of their injury.

Listen. The client must reveal the significant emotional moments of her injury. Getting this to happen is the first step in becoming a quality trial lawyer. The key is to internalize our client’s emotional moments related to her injury. The only way this can be done is to listen to the client. The tendency is to illicit facts of the case from the client, and soon begin to fill in the facts with how we interpret the facts. We learn as early as law school how courts interpret facts. We want our client to have a case similar to other successful cases so he processes our client’s story like a successful personal injury case.  Thus, the story at least partially becomes our story. Once this happens our client’s story loses it’s emotional impact-it becomes a factual lawyer’s version. This causes the story to lack authenticity. The jury picks this up. The result is either bad or at best less than what the result will be if the story is told from the heart having internalized its emotional impact.

Your Story. Dawson and Wagner also teach to try a case at the highest level we must know our own story. This requires us to get in touch with our client’s emotions through relating to our own similar emotions. This means our betrayals, loves,  successes and failures.By doing this we are able to walk in our client’s shoes with honesty and reflection. Here we relate at the highest level with our client and the jury.

Honesty. Honesty must permeate our case from jury selection through closing argument. When we suffer defeat in a jury trial the tendency is to see the jury as a “bad jury” as if it is the jury that failed to appreciate our case. In reality it is our fault in failing to appreciate the case. When we tell the story on a surface level without demonstrating the emotions that accompany the story we leave the jury with an empty story. The jury responds with empty appreciation. When we get to the emotional level reliving the significant emotional moments of the injury we recreate what happens to our client. It is raw, it is real, it is full. The jury responds with a full result.

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Disfigurement damages are the easiest to prove, but the proper demonstration of disfigurement is often misunderstood.

Disfigurement. Disfigurement includes scars, missing body parts, deformed body parts,  skin color changes, loss of hair, and any  disturbing visual change to the body resulting from injury.

Most Important Body Parts. The most significant disfigurement cases involve the face. Our face is what we show the world. Our face is how we are first perceived. A facial disfigurement case is a substantial injury case. Second to our face is our hands. We can cover all parts of our body outside of our face and hands without being perceived as unusual. Arm and leg disfigurement is also difficult to hide especially arm disfigurement. In essence any disfigurement that is readily apparent and often exposed is a significant injury.

Sex and Age. As a general rule, disfigurement on a women is a more significant then the same  disfigurement on a man. Generally, disfigurement on a young person is a more significant then the same disfigurement on an older person. These realities are the realities of society and society members are who will be on your jury.

Demonstrating Disfigurement. The most important aspect of a disfigurement case is demonstrating disfigurement. The great trial lawyer Howard Nations says it best:

– Jurors are Subject to the Anesthetizing Effect

The better part of wisdom dictates that when a severely injured Plaintiff is being presented to a jury, the less time the jury can actually observe the victim, the stronger effect the injuries will have on the jurors. Long term and constant exposure to a severely injured person causes an anesthetizing effect with…jurors who become accustomed to the injuries and less empathetic with them as time progresses.

For example, a seriously burned individual who has horrendous scarring may cause jurors to look away upon first contact. However, if that person sits in the [court] room in sight of the jurors…for several days of trial, by the time the jurors enter the jury room to deliberate on damages, they will be anesthetized to the damage and will not view it as tragically as they would have upon initial contact.

From the Plaintiff’s viewpoint, the wiser course is to bring the seriously injured victim in to introduce to the panel on voir dire examination. Then ask the court that the person be excused and not have them return until they are called to the witness stand to testify. After testifying, they should not be seen again by the jury… .

The absence of the Plaintiff during the trial can be explained by a medical witness or psychologist who will testify that it is in the best interest of the Plaintiff not to hear the testimony concerning the accident either from the viewpoint of reliving the horrors of the events or hearing testimony about the devastating long term effects… . (Howard Nations, Powerful Persuasion)

Separate Element. As with all of our elements of general damage, disfigurement is a separate element. It must be segregated for the jury. Care must be taken in doing this and assigning a separate value. We only have one opportunity to get fairness for our injured client. Our injured client lives the rest of her life with her injuries.

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The separate element of loss of enjoyment (of life) as a component of general damages is an example of how the law is a moving stream and how good law makes common sense.

Kirk v. WSU. In 1978 Washington State University as did all major D1 universities had a cheer leading squad. The cheer leaders were as they are today-athletics. During a cheer leading practice Kathleen Kirk a WSU cheerleader sustained serious orthopedic injuries (elbow and leg) when she fell during a cheer stunt practice. Practice was at Martin Stadium on AstroTurf which is a harder surface then practice mats. The stunt was a new untried maneuver. The cheer coach had transferred and no replacement was as let named. All this translated to a negligence lawsuit against WSU.

Loss of Enjoyment. Kathleen Kirk was more then a D1 cheerleader. She was a talented ballerina. She wanted to pursue a career in ballet after college. Her injuries prevented her from becoming a ballerina. Her lawyers knew they had general damage theories for pain and suffering and for disability. But pain and suffering compensates for physical and mental discomfort. And disability compensates for inability to lead a normal life. Neither pain and suffering nor disability compensate for the loss of a life pleasure. Stated another way neither compensate for the taking of the ability to pursue a specific artistic or athletic skill.

Moving Stream. Ms Kirk’s lawyers, Richard Eymann, Steven Jones and Robert Greer, argued for a separate loss of enjoyment damage instruction at trial. Spokane County Superior Court Judge John Schultheis agreed the law is a moving stream and allowed a separate loss of enjoyment damage instruction. The jury saw the separate element of loss of enjoyment as the evidence demonstrated Ms. Kirk was a future ballerina but the injuries prevented her ballet pursuit. The jury awarded loss of enjoyment damages.

Separate Element of General Damage. The Washington State Supreme Court in Kirk v. WSU, 109 Wn.2d 448, 746 P.2d 285 (1987), agreed with plaintiff attorneys and with Judge Schultheis. The court held loss of enjoyment is a unique general damage. It is a separate general damage. It compensates for injury when injury takes away a specific artistic and/or athletic skill.

It is important to recognize loss of enjoyment is a separate general damage. It does not merge into pain and suffering or into disability. Loss of enjoyment stands alone. Loss of enjoyment recognizes special talent. Loss of enjoyment recognizes the value to the person of her special talent. Loss of enjoyment recognizes when the special talent is taken away or reduced because of injury the jury needs to be made aware. In Washington as in most states the jury then awards the monetary amount it feels properly compensates plaintiff for her loss of enjoyment.

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Suffering is different than pain and the two are distinct general damages. Disability is a third distinct general damage. The Americans with Disabilities Act defines disability as a physical or mental impairment that substantially eliminates one or more major activity. 42 USC sec 12101-17 (1992). Recovery for disability compensates for the inability to lead a normal life. Kirk v. WSU, 109 Wn.2d 448, 461, 746 P.2d 285, 292 (1987

When we ask the jury for disability compensation we have a physician rate plaintiff under the AMA Guidelines for impairment. According to the AMA Guidelines a ratable disability results from an  impairment that impacts an activity of daily living (ADL). ADL’s include self care, communication, physical activity, travel, sexual function, and sleep.  Impairment in doing ADL’s  involves most of the waking hours.

When plaintiff’s physician testifies the injury results in a ratable impairment which effects ADL’s, the disability instruction must be given. Martin v. Foss Launch & Tug Co., 59 Wn.2d 302, 307, 367 P.2d 981, 984 (1962). In Washington, when  plaintiff’s physician testifies to plaintiff being partially disabled because of permanent back stiffness it is proper for the jury to decide disability. Id.

A permanent injury is seen when the impairment continues at the point of Maximum Medical Improvement (MMI). MMI occurs when the condition is unlikely to change in the next year.  Moreover, the jury can consider future disability damages when the physician testifies plaintiff more probably than not will have continuing medical problems. Martin v. Foss Launch & Tug Co., 59 Wn.2d 302, 307, 367 P.2d 981, 984 (1962).

To prove disability, in opening discuss the facts of the injury and how plaintiff’s physical limitations caused by the injury impact specific activities of daily living. During the case in chief lay witnesses testify to observations of plaintiff’s limitations. Ideally the witness is able to offer observations of plaintiff before the injury where plaintiff has no limitations. After the lay testimony follow with the MD who describes the injury, the impairment, and rates plaintiff pursuant to the AMA Guidelines.

In closing when discussing general damages take time to segregate disability. Discuss the lay and expert testimony going to disability. Reiterate the ADL limitations. Be fair in the separate disability ask. If the ask is a lump sum make sure the jury understands the disability component.

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