I received a question recently that I thought would be a good Brushstrokes topic. Below is the question and answer.
The Question
The defense is clearly taking the approach of “throw everything against the wall and see what sticks.” Deposition testimony is full of random references to prior car accidents that hurt different body parts; the physical toll that working as a massage therapist would take on a body (the client is a massage therapist); and the possibility that a breast enhancement surgery can lead to neck and upper back pain. That is just a sample – the defense has at least a dozen alternative theories – not the least of which is the plaintiff is faking. I am interested in your thoughts on how to swat down all of these defenses in opening statement without getting too bogged down.
The Answer
The key is to expose the defense’s deceptive practices, without being too argumentative or sounding like you are making excuses. You need to keep them from getting a foothold, which means you have to take it on in opening. You need to brand what they are up to with phrases that will stick. One such powerful phrase is to label what they are doing as “the anything but defense”.
Once you create that winning framework, start mowing down their defenses in rapid-fire fashion, targeting the ones that will best demonstrate they are taking unfair positions. Here is an abbreviated version of dealing with defenses where they include everything but the kitchen sink, hoping something will work on the jury. I’ll use the circumstances described in the question posed to me to demonstrate.
The Voir dire Piece
Set this up in voir dire by asking jurors about their experiences with trying to get to the truth of the matter when they were faced with different stories, especially where one side was throwing everything against the wall to see what would stick, an “anything but” defense.
Opening
(At the end of opening, after laying your case out, say the following.) In life, if you’re serious about getting to the truth of the matter, one of worse things that can happen is for things to be taken out of context or facts be viewed in a vacuum. In a courtroom, it is doubly important that things be put in context with all of the evidence. With that in mind, I want to go through a few of the things the defense will be saying and put them in context with all the evidence (when you use the word “in context with all the evidence” drag it out in a tone that gets the point across you are not making excuses, you are protecting the jury from being misled. Don’t overdo it. It doesn’t take much to get the message across.)
The defense will tell you Ms. Jones has hurt different parts of her body over the years and will try to convince you that is why she is having neck pain. It is true Ms. Jones had other accidents in the past. Now, let’s get that in context with all the evidence. Ms. Jones was 50 years old at the time of this crash. It is not surprising she has had other injuries in her life. None were serious. They all healed up. Her treating neurosurgeon will make it clear they have absolutely nothing to do with the herniated disk she suffered in her neck as a result of this crash. The treating radiologist will show you MRIs that prove there is new herniation that was caused by the trauma this crash. You will be able to see it with your own eyes. MRIs don’t lie, nor will your eyes. The only witness who will say anything different won’t be a doctor who was involved in Ms. Jones care. It will be someone whose sole involvement will be as someone handpicked and paid for by the defense, someone the defense hires all the time, someone who these lawyers handpicked and hire all the time. 25% of his income comes from helping defense lawyers present defenses just like this one over and over. You will see the story he tells you doesn’t add up, it defies common sense. He is on an island by himself.
Next the defense will tell you Ms. Jones is a physical therapist and will try to convince you that caused her sudden onset of pain which started at the time of this crash and has never gone away. It is true she is a massage therapist. Now, let’s put that in context with all the evidence. She has been a physical therapist for 20 years and never suffered a herniated disk, never complained of neck pain, never saw a doctor for neck pain, never had injections in her neck, never had surgery on her neck. The defense is suggesting it’s all just a big coincidence that her pain started at the moment of the crash and has never gone away. Her years of message therapy just appeared out of the blue like a lightning bolt and started causing pain when the crash occurred.
There is more. The defense will also tell you Ms. Jones had a breast augmentation procedure and will try to convince you that is why her neck is hurting. Again, let’s put that in context with all the evidence. She has a muscular back from all of those years of being a massage therapist. So, when she had the breast procedure six years before this crash, it was a success and caused her no neck pain, period, none. It certainly didn’t cause the new traumatic disk herniation that occurred six years later that you will see with your own eyes.
I don’t have enough time to go through all of their “anything but” defense. Just keep in mind, as the trial goes on, we will provide you with the clarity of context, so you can do your jobs without distractions. When the defense finishes their opening, you will see why we need you.
Nothing they say will change this fundamental truth. The treating doctors will be the most reliable guides to the truth. They weren’t handpicked and hired by one side in a lawsuit and they will tell you Ms. Jones suffered a herniation in this crash, which is a serious, forever injury. You will see with your own eyes there is a herniated disk with increased signal that proves it was caused by new trauma, and MRIs don’t lie.