Shapiro, Lewis & Appleton
All We Do is Injury Law
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INTRODUCTION
Successfully presenting a personal injury case to a jury can be a daunting undertaking. In this discussion, you will find some hints regarding ways to make the experience more successful for you and your client. One of the most important things you should always remember is "be yourself." The moment you begin trying to emulate someone else or to present a style that does not come naturally to you, the jury will realize it and you risk losing credibility with them. This can be fatal to a personal injury case, or any type of jury trial for that matter.
VOIR DIRE The willingness of judges in Virginia to allow you a free reign in voir dire varies widely from one judge to another. The value of voir dire cannot be underestimated. Accordingly, every effort should be made to convince your trial judge that extended voir dire is in everyone's best interest.
Even with a judge who is severely limited in his willingness to let you interrogate jurors before exercising your preemptory strikes, two goals must be met. First, it is imperative for the plaintiff's lawyer to identify who the "tort reformers" are on the panel. If they are allowed to sit on the jury, they will poison the entire process from the plaintiff's perspective.
We begin the search for these individuals by asking the members of the panel if they believe there are too many frivolous lawsuits being filed in America today. This question is incredibly revealing and productive and certainly should be asked in every case. Depending upon who the trial judge is, reasonable follow-up to this question is also very important.
The second goal in voir dire is to begin conditioning the jury for your case. One of the most important and overlooked tools available to the plaintiff's bar is the burden of proof in a civil case. As we all know, a "preponderance of the evidence" simply means "more likely than not." If a fact is proven to a level of 51%, then the plaintiff's burden of proof has been met.
It is imperative that this legal concept be carefully explained to the panel and, if possible, it is likewise imperative that an agreement be extracted from each panel member to approve of that concept and to follow it during jury deliberations.
In addition, if allowed to do so by the trial court, the weaknesses in each respective party's case should be revealed to the panel and attempts should be made to have each panel member agree that this weakness will not overly influence his or her decision making.
Conventional wisdom has held that the employment of a prospective juror will tell the attorneys a great deal about that juror's willingness to award compensation to an injured party. Traditionally, the following professions were considered to be plaintiff friendly:
Likewise, the following professions have been considered unfriendly to injured plaintiffs seeking compensation:
The above notwithstanding, considered responses to good voir dire questions are far more important than the traditional preconceived notions about how one's employment can be used to predict the willingness of a prospective juror to rule in favor of one party or the other.
Occasionally, trial judges will strain to keep panel members on the jury so as to avoid having to strike for cause. It is important to remember that the Virginia Court of Appeals has condemned the use of leading and suggestive questions by the Court in an effort to rehabilitate a juror who has made comments that question their ability to sit as impartial jurors. Griffin v. Commonwealth, 19 Va. App. 619; 454 S.E.2d 363 (1995). This case also confirms the long standing proposition that a juror's impartiality must be established "beyond a reasonable doubt." See also Justice v. Commonwealth, 220 Va. 971 (1980).
Section 8.01-358 of the Code of Virginia is the operative statutory language controlling voir dire. You should be eminently familiar with its provisions.
OPENING STATEMENT
It is important that you make the best possible use of your opening statement. My experience has been that most cases are won or lost as a result of the effectiveness of the opening statement by each party. By this, I mean that once opening statements are concluded, most jurors have made up their mind as to which side they believe should win. The rest of the trial is spent by these jurors collecting facts that support their predisposition. For this reason, it is vitally important that you persuade as many members of the jury as you can that your side should prevail during your opening statement.
Conventional wisdom tells us that jurors remember almost everything they hear during the first 60 seconds of an opening. For each incremental minute thereafter, the amount of information that jurors hear and/or retain diminishes rapidly. Accordingly, it is imperative that you not waste your initial time with the jury discussing procedural issues or explaining for them and to them what an opening statement is intended to do.
The new and somewhat revolutionary thinking amongst many opinion leaders in the personal injury business holds that the use of "rules of the road' is an immensely effective method of winning the minds and hearts of jurors. Accordingly, it is widely believed that you should "come out of the box" with rules of the road and an explanation that should one violate a rule of the road, he should be held responsible.
For instance, one can begin his or her opening statement with an explanation like "drivers of automobiles must always obey traffic signal lights. If they don't, they should be held responsible for the harms and losses that result from this failure."
It is thought that to explain the plaintiff's case in a way that forces the juror to begin thinking about his or her own personal safety is an extremely valuable concept for winning over the hearts and minds of jurors.
Another emerging concept concerns the idea that you should tell your client's story in the present tense rather than referring to it as a historical event. For instance, you can say to the jury, "Today is January 15, 2007. It is a clear sunny day and the driver of a Kenworth tractor trailer makes a decision to try and beat an orange light at the intersection of Independence and Virginia Beach Boulevards. The consequences of that decision resulted in the driver of a 2005 Hyundai to suffer two ruptured discs and a broken leg."
You can then go on to explain the "harms and losses" that the driver of the Hyundai sustained.
It is vitally important that you deal with the weaknesses in your case during your opening. If you are representing the plaintiff and the first time that a jury hears about a contributory negligence issue comes from the defense lawyer, you have done your client a great disservice. It is also vitally important that you have solid, logical arguments for the jury during your opening statement that tells them why the weaknesses in your case should not result in a defense verdict.
PRESENTING YOUR CASE
There is no real magic to putting on your evidence once you have decided what witnesses you are going to call and what witnesses you are not going to call. If at all possible, call your witnesses in a way that tells a logical flowing story for the members of your jury. If you put on someone who tells the end of the story first and someone who tells the beginning of the story last, it is easy to confuse the jury. If this happens, it is unlikely that you will convince them to do what you want them to do.
As a general rule, your best witnesses should be called early in your case. It is also helpful to end your case with a strong witness. Accordingly, conventional wisdom tells us that your weaker witnesses should be buried in between stronger witnesses so as to minimize any damage they may do to your case.
From my experience, if the plaintiff is a good and strong witness, he or she should be called earlier rather than later in your case. If your plaintiff doesn't make such a good witness, then he or she should be surrounded by other witnesses who are more effective.
My experience has been that jurors also respond very favorably to testimony by friends and family members of an injured plaintiff regarding the damage aspects of the case. This seems to lead jurors to feel more empathy and sympathy for the injured plaintiff. Accordingly, in every personal injury trial, it is important that you search for friends and family members who can come into the courtroom and do an effective job of sharing their observations regarding the harms and losses suffered by the plaintiff with the members of your jury.
It is often said that a picture is worth a thousand words. We have learned that this holds true in a courtroom. Accordingly, your presentation will be much more effective if you are able to include with it visual aids such as charts, forms, medical illustrations and, where possible, video clips from depositions that you have taken pre-trial. Jurors retain a far greater percentage of information if the testimony is accompanied by visual aids. "Tell them what you want them to know, show them what you have told them, and then tell them again."
JURY INSTRUCTIONS
I believe the importance of jury instructions in personal injury cases is frequently overlooked. Since the inception of the "model jury instructions," I think that trial lawyers have gotten quite lazy in the way they approach the jury instruction process.
Remember, that whatever is set forth in the jury instructions comes to the members of your jury from a judge wearing a black robe. The importance of this notion cannot be underestimated. Accordingly, I strongly promote trying to be creative with your jury instructions and not allowing yourself to be "handcuffed" by the lack of imagination that is set forth in the model instructions.
Supreme Court opinions should be consulted and relied upon by you in the crafting of imaginative jury instructions. Whether the court grants a proposed instruction or not is within its sound discretion, and if you do a good job of crafting an instruction that is faithful to existing case law, you drastically enhance the likelihood that you will have that instruction granted by the judge.
You should also use your jury instructions in designing your examination of witnesses. For instance, the damage instruction in a personal injury case can be easily adapted to the examination of your plaintiff and his or her damage witnesses. This allows you to present a cogent and "law based" argument at the conclusion of your case.
CLOSING ARGUMENT
a closing argument should be just that, ARGUMENT. Unlike the opening statement where you are theoretically limited to a discussion of the facts that are relevant to the case, in a closing argument you are able to urge the jurors to make certain conclusions from those facts. This is an invaluable opportunity and should not be passed up by presenting a boring, fact-based presentation.
Your closing argument should not be a regurgitation of the evidence that the jurors have heard. Rather, it should be a logical argument, during which you construct a convincing basis, upon which jurors that are going to support you in the jury deliberation room can stake their position.
I do not believe that many cases are won during closing argument. Accordingly, it is vitally important that you spend a significant portion of your time during close giving those jurors who are going to support your case the ammunition they need to refute defense oriented juror arguments.
For example, you can say "when you are deliberating back in the jury assembly room, if one of your fellow jurors brings up the fact that the defendant has testified that the plaintiff was speeding at the time of the collision, remind him that four independent witnesses who observed this accident and came to court today to talk to you all testified that Mr. Jones was traveling at a speed less than the speed limit." By doing this, the theory is that you empower those jurors who are predisposed to rule in your favor with the facts necessary to refute and rebut jurors who are predisposed to rule otherwise.
CONCLUSION
The trial of a personal injury case is a challenging undertaking. The success that this experience achieves is directly related to your hard work in preparing for the trial and your careful consideration of the principles of the art of persuasion.
MANDATORY READING
There are two books that I consider to be mandatory reading for anyone who is trying personal injury trials in Virginia, or anywhere else for that matter.
The first one is entitled Rules of the Road by Rick Friedman and Patrick Malone. This book can be obtained online at www.trialguides.com or by calling 1-800-309-6845.
The second book is entitled David Ball On Damages: The Essential Update. This book is published by the National Institute for Trial Advocacy, which can be reached at 1-800-225-6482.
How can you identify a top Virginia injury lawyer for your case? Look no further.
Our VA personal injury lawyers have been selected for many accolades.
Two of the attorneys with our Virginia Beach accident injury law firm, James Lewis and Rick Shapiro, have been named the Best Lawyers in America since 2008. Two of our VA injury lawyers -- Lewis and Shapiro - have been named to Virginia Super Lawyers for Personal Injury since 2010. In addition, Lewis and Shapiro have been selected for inclusion in the National Million Dollar Advocates Forum since 2009.
Our VA accident injury law firm was the first in the commonwealth nvited to join Primerus, a select group of highly ethical and respected law firms. Rick Shapiro was named as one of the Top 100 Injury Lawyers in Virginia by the National Trial Lawyers Association.
In October, 2000 our law firm and co-counsel obtained what was then the largest verdict in Virginia's history for an injured person. Our brain damaged client received an initial award of $46 million that rose to $60 million with interest when the defendant abandoned an appeal and agreed to settle.
Geographical Areas
Our personal injury lawyers handle personal injury cases throughout the eastern USA, and work closely with lawyers in other states on signficant injury cases.
In Virginia, this includes Norfolk, Virginia Beach, Chesapeake, Portsmouth, Hampton, Newport News, Suffolk, Richmond, Petersburg, Roanoke, Salem, Alexandria, Arlington, Fairfax, Fredericksburg, Charlottesville, Ashland, Big Stone Gap, and every community on the Eastern Shore, including Accomack, Onancock, Chincoteauge, Wachapreague, and Cape Charles, Bloxom, Eastville, Exmore, Greenbackville, Machipongo, Mappsville, Melfa, Nassawadox, Onley, Tangier, Temperanceville, Wachapreague and Wallops Island.
In West Virginia, we can handle personal injury claims in Bluefield, Beckley, Bridgeport, Charles Town, Charleston, Fairmont, Huntington, Lewisburg, Madison, Martinsburg, Morgantown, Moundsville, Parkersburg, Ripley, Sutton, Weirton, Wheeling and any other town or county.
Injury Lawyers licensed in VA, WV, North Carolina (NC), South Carolina (SC), Kentucky (KY), Florida (FL) and Washington, DC.
Car & Motorcycle Accident Attorneys
Crashes Caused by Trucks
Medical Malpractice/Doctor Mistakes
Brain Damage/Head Injuries
Railroad Injury/FELA
All Serious Injuries
Dangerous Drugs & Devices/Product Recalls