One way or another, the defense tries to point the finger back at our clients. They say  the incident was their fault or the extent of injury was their fault or being in poor health to start  with was their fault or being born was their fault. Rather than see those insulting attacks as a  threat, I see them as an opportunity to expose the fact it is the defense who is being unfair and  unreasonable, not us. 

When a jury is needed to resolve a dispute, that means one side is being unreasonable.  Jurors intuitively understand this and will be looking to see which side is the unreasonable one.  Unfair attacks on the plaintiff are a means to quickly make it clear that the defense is the  problem here, not us. 

I just tried a nursing home case with one of my partners that highlights how to establish  the high ground and make the defense regret unfairly going after someone who deserves respect, not insult. 

Our client is a very special lady. She was born with paraplegia due to spina bifida. She  refused to let this disability ruin her life. She went on to get a master’s degree in education and  taught special education in public school for 30 years. In her late 60s, after retiring, she broke a  bone in her leg that required surgery. She went into a nursing home for short-term rehab. She  developed a skin tear in the nursing home. After a month in the facility, she was transferred to  a hospital because she was feeling sick. At the hospital, it was discovered that the small tear  had progressed into a big pressure wound that went all the way down to the bone. She could  not feel it getting worse due to her paralysis and could not see it because it was on her  backside. She had no idea how bad it had gotten. 

It took 2 years to heal, with multiple hospitalizations and lots of rehab. The crater left  behind was susceptible to opening back up if she used the long leg braces that she relied on to  make transfers from bed to wheelchair and back, as well as wheelchair to toilet and back.  Losing use of her braces for transfers had a devastating impact on her quality of life. The  defense claimed there may be alternatives that could be designed. It was our position there  were no workable alternatives. 

She now uses a homemade board like a bridge between the bed and wheelchair that  she scoots across using her upper body strength. It is dangerous. She has fallen more than once during these transfers. After one fall, she laid on the floor for over 12 hours until her home  health aide (who came twice a week for 3 hours) found her on the ground the next day and called 911. The sliding board doesn’t work at all for transferring from wheelchair to toilet. Now when she has to go number two, she lays on her side in bed and defecates on a disposable  paper cloth.  

This wonderful, inspirational lady who had overcome so much in her life was being  accused of causing her own pressure wound, by allegedly failing to cooperate with efforts to  provide pressure wound protection. The defense admitted the big pressure wound was  preventable, but said it was her fault it occurred, not theirs. We presented evidence that the  nursing home was understaffed and failed to consistently provide adequate pressure wound  protection and that is what caused her injury. She needed to be turned every two hours and  couldn’t turn herself. 

The jury returned a verdict of 12.5m (of which 10M was for pain and suffering) with 13%  comparative for a net of 10.5m. While we were disappointed the jury put any fault on our  client, we were pleased that they returned a just verdict that recognized the magnitude of what  was taken from her in the way of mobility, independence, and quality of life.  

Now, let me share three examples of how we turned their blame-game defense against  them. 

First, we used an instantly recognizable term, “do-it-yourself”, to put a spotlight on how  unfair it was for the defense to argue our client wasn’t doing her part for wound protection. What follows is how we harnessed that concept.  

Because of her paralysis and right leg immobilizer from the surgery, she could not turn herself. Without their help, she could not adequately off-load pressure from her behind. This  was not a do-it-yourself project. If she could do it herself, she wouldn’t have needed them

Second, we added another well-known phrase, “we’ve got your back”. Here is how we put it.  

The defendant knew she was at high risk for developing a pressure wound if they didn’t  turn her at least every two hours. They knew she couldn’t protect her own backside because she  couldn’t feel it or see it. Knowing all of this, the defendant said, pick us, we’ve got your back.  When she ended up with an admittedly preventable pressure wound on her backside, how did  they respond? Don’t look at us, it’s her fault, as if it was a do-it-yourself job. 

The third piece that brought it all together in closing was a bookends metaphor used to  show that the defense of trying to pass the blame off on our client started way back before  there was any lawsuit. The director of nurses found out about this bad pressure wound when  she got a call from the hospital to which our client was transported. Her very first response was  to write an email to the corporate office blaming the pressure wound on our client. The  defense expert came along later and testified in a strikingly similar way. I used a flipchart to  draw a book that was sandwiched between two bookends.  

On the spine of the book, I wrote a title, “The Defense”. Then I explained there are two  bookends to their story. The first comes from the Director of Nursing at the facility who wrote  an email right after learning of the pressure wound from the hospital, in which she started  trying to blame their patient for getting this pressure wound on their watch. We put the email  up on the screen so they could see that is where it all began. With the email still up on the  screen, I explained the other bookend was the defense’s expert. While pointing to the email, I  asked, “Does what you just heard from their handpicked, hired expert sound familiar? Now you  see why we need you”.  

I finished this part with, “But they don’t get to write the final chapter, you do. It’s called  a verdict form. Let me show you what it looks like.”  

The point is less about a particular strategy and more about a mindset. See the  defense’s ingrained instinct to go on the attack not as a threat, but as an opportunity to take  them down for their unfair tactics, like a martial arts master does when a bully lunges at him or  her.