Defending Damages in Death ActionsAuthor(s): Jonathan M. SternSource: Litigation, Vol. 23, No. 4, DEPOS · DAMAGES · DESPERATION (Summer 1997), pp. 45-48, 68-69Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759942 .

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Defending Damages

in Death Actions

by Jonathan M. Stern

Human life is priceless. But as litigators, we are often asked to

put a price tag on the priceless. After all, how else can we com?

pensate for the loss of life in wrongful death litigation? Because of the limitations inherent in our system, we must do what is at best, unseemly and at worst, impossible?we must

put a price on a life, or at least on certain aspects of that life. For years, the daunting nature of this task led many juris?

dictions to use economic loss as the exclusive measure of

damages in wrongful death cases. More recently, there has been a trend, either by legislative or judicial action, to broaden the scope of wrongful death damages. The recover? able items of damage and the manner in which each is to be calculated varies dramatically from jurisdiction to jurisdic? tion. These differences complicate the job of, and pose an

extraordinary challenge to, defense counsel involved in mul tistate wrongful death litigation.

But there are some devices that defense counsel can use to defend damages claims in multistate wrongful death litiga? tion. There are ways to cut through the exaggeration that is often present in such claims, particularly where the applica? ble law provides limited damages. There are questions that defense counsel should ask to draw a defense road map. And there are ways to accomplish this while remaining consider? ate of the emotions and feelings of the survivors.

Imagine that your firm has just been assigned the defense of a wrongful death lawsuit pending in the circuit court of a

neighboring state. You and a colleague have agreed to divide the case into liability and damages issues. You draw the short straw and therefore the damages assignment. How do you begin?

Your first steps should be to try to predict the law that will be applied to damages issues. If the case is pending in one of the jurisdictions that still follow the lex loci delicti choice of law rule (e.g., Virginia or Maryland), your task is rather easy. In fora that use other tools to resolve conflicts of law ques? tions?such as most significant contacts or governmental interest analysis?prediction becomes more difficult.

Study the potentially applicable laws and determine which

jurisdiction's law is best for your defense. Some wrongful death statutes provide that they only apply to death-causing injuries within the particular state; you may be able to use

Jonathan M. Stern is in the Washington, D.C., office of Schnader Harri? son Segal & Lewis, LLP.

these type of statutes to your advantage. Ask questions about the decedent and the events that led

to her death. Where did the decedent reside? Where did the occurrence leading to the death take place? Where did the

alleged acts of negligence occur? Where are the principal places of business or the states of incorporation of the cor?

porate defendants? The answers will likely shape your choice of law arguments.

Consider the reasons that may have motivated sophisticated plaintiff's counsel to select the particular forum. For example, the forum may have been chosen to avoid a particular cap on noneconomic damages or the application of a contributory neg? ligence defense. Use the fact of an artificially chosen forum to

argue for the application of a different jurisdiction's laws.

Choice of Law Questions While most jurisdictions in the United States trace their

wrongful death statutes to an act of the British Parliament known as Lord Campbell's Act, the content and interpretation of these statutes vary significantly. For that reason, resolution of the choice of law question may be of the utmost importance. For example, the persons who may be empowered to bring the action, the beneficiaries of the action, the elements of recover? able damages, the methods of calculating such elements, caps on damages, and the availability of joint and several liability may all vary from jurisdiction to jurisdiction. These variations can lead to errors on the part of plaintiff's counsel, such as

suing in the wrong name, omitting recoverable items of dam?

age, and incorrectly limiting or expanding the range of benefi? ciaries for whom damages are claimed. Such disparities between the laws of even neighboring jurisdictions can lead to substantial differences in the value of a particular case.

As a threshold issue, be certain that opposing counsel has named the correct plaintiff. In some jurisdictions, the only proper plaintiff is the personal representative of the dece? dent's estate. In others, the plaintiffs may be one or more of the beneficiaries of the class or classes stated in the wrongful death statute, sometimes in specified orders of priority.

The distinctions can be quite significant. Not only may a

wrongful death suit be subject to dismissal if filed by an

impermissible plaintiff, but a judgment in favor of the wrong plaintiff or plaintiffs may not be res judicata, and therefore

may not bar a subsequent suit for the same wrongful death by the proper plaintiff. Under the Georgia statute, for example,

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the surviving spouse is the only necessary plaintiff. If, how? ever, there is no surviving spouse, all children of the dece? dent should join as plaintiffs. The absence of one or more

necessary, or even potential, plaintiffs can lead to problems with the finality of any judgment.

The statutes also differ with respect to who may settle a

wrongful death case and what approvals or authorizations may be necessary prior to consummation of the settlement. For

example, a wrongful death case involving minor beneficiaries under Texas law should receive trial court and probate court

approval. Research the requirements under both die applicable wrongful death statute and the applicable probate laws. And remember that the wrongful death statute of one state, and the

probate laws of a different state, may well apply.

Formal and Informal Discovery Confirm that the plaintiffs are empowered to bring the

action. For example, where state law requires that the estate's personal representative bring the action, defense counsel should obtain copies of the letters of appointment from the probate court or should request such documents in

discovery. And if more than one person brings a wrongful death action for the same death (it happens more often than

you may think), control the progress of the multiple actions to prevent them from developing into multiple judgments.

After determining, studying, and understanding the applic? able law?or at least the potentially applicable laws?and

ensuring that the plaintiff who brought suit is the right one, focus on discovery. As you do, define the discovery that you need to meet the evidence at trial, to obtain leverage for set? tlement negotiations, and to support pretrial motions, includ?

ing motions for summary judgment and motions in limine.

Carefully consider each element of recoverable damage as

you formulate your discovery plan. Use the traditional, for? mal tools: interrogatories, requests for production of docu? ments, depositions, and subpoenas to third parties. But con? sider informal discovery tools?private investigations, FOIA requests, Internet searches, and the like?as well. The World Wide Web is becoming an increasingly useful tool to

gather information about companies, events, medicine, and scientific information. Keep your discovery plan as flexible

as possible so that changes in claims, evidence, and budget can be accommodated.

As you turn your attention to the heart of the matter, just how much money is this case worth? Think first about who will be receiving that money. Most wrongful death statutes

specify, by class, the beneficiaries of a wrongful death recov?

ery. Some statutes provide that damages are to be distributed as under the state's law for distribution of intestate estates. Others specify that the jury or other factfinder shall deter? mine the distribution among the beneficiaries. Still others

provide for specific splits among the beneficiaries (e.g., the

Georgia statute provides for a per capita distribution

amongst the surviving spouse and children, but with a mini? mum of 25 percent to the surviving spouse). Many?but not

all?wrongful death statutes have been amended or inter?

preted to provide a recovery to illegitimate children. Determine the range of beneficiaries under the applicable

statute and resist any effort by plaintiff's counsel to exceed this range. In jurisdictions that allow compensation for the

grief experienced by survivors, the particular beneficiaries to whom recovery is permitted can be very significant to the bot? tom line. Unlike pecuniary losses occasioned by the death of a

provider, which cannot exceed the income that the decedent would have generated during his natural lifetime, grief can be

experienced by an unlimited number of surviving relatives and, in some cases, has the potential to result in very substan? tial awards. Therefore, if survivors can recover for grief, but the statutory beneficiaries include only the surviving spouse and children, resist any effort by the plaintiff to offer evidence of the grief experienced by the decedent's sibling.

Use interrogatories to identify all kin of the decedent so that you can determine the identity of all beneficiaries or

potential beneficiaries of the wrongful death action. In those

jurisdictions where all beneficiaries need not be named as

plaintiffs, request the current residence and business address of each beneficiary. Take their depositions. If opposing coun? sel will not informally agree to make them available for

deposition, subpoena them. Just what the beneficiaries can recover will largely depend

upon the jurisdiction whose law governs the wrongful death action. In fact, the variation from jurisdiction to jurisdiction

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of elements of recoverable damage is extraordinary. One

state?Alabama?provides only for punitive damages for

wrongful death, measured by the gravity of the wrong, the

propriety of punishing the wrongdoer, and the need to deter others from like conduct. Other jurisdictions allow recovery only for the economic loss of beneficiaries from specified classes. The measure of damages in a wrongful death action is usually, but not always, from the perspective of the bene? ficiaries. Georgia's statute, an exception to this general rule, has been interpreted to provide recovery for loss from the

perspective of the decedent. Most wrongful death statutes provide compensation to

beneficiaries for the loss of financial support or income that results from the death of the decedent. But the statutes vary widely in the measure of these lost earnings. The least gen? erous of the wrongful death statutes permits recovery solely to replace that portion of the decedent's income that would

reasonably have been expected to benefit the beneficiaries of the action. At the other extreme are those wrongful death statutes that provide for recovery of all moneys the decedent could have been expected to earn during her natural lifetime without any setoff or deduction.

Familiarize yourself with the details of the law that applies. Will any award be reduced for the decedent's personal con?

sumption? Are income taxes that would have been paid sub? tracted from lost earnings? May the jury be told that the award itself will not be subject to income taxes? Is there any recov?

ery for prospective net estate accumulations if none of the

statutory beneficiaries could reasonably have been expected to have outlived the decedent's natural lifetime?

Carefully explore the factual underpinnings of the lost

earnings claim. Where the decedent was a salaried employee in a stable career, you may need to review only basic wage and employment records, including several years of perfor? mance evaluations. Where, however, plaintiff claims that the decedent would have experienced extraordinary promotions and increases in income, more detailed discovery will be

necessary. Interview or depose colleagues and supervisors to

gauge the likelihood of an advancement required to attain

plaintiff's salary projections. If the plaintiff claims that the decedent would have taken a

different position that was filled after his death, explore the

qualifications of the person who actually filled the job and

compare them to those of the decedent. Moreover, explore the

steps that the decedent had actually taken to qualify for and

apply for the position. This will help determine how serious, if at all, the decedent was about pursuing the position. If the

plaintiff claims that the decedent would have changed jobs, or even careers, with a resultant extraordinary increase in income, your job will be even more complicated. In addition to work-related records, school transcripts, other educational records, and even interviews of former teachers or mentors

may be necessary to evaluate the legitimacy of the claim. If the applicable or potentially applicable law permits a

setoff for the decedent's own maintenance or personal con?

sumption, determine whether decedent was a big spender. Request production of several years' worth of credit card statements, check registers, and similar financial records. Because of the proliferation of personal finance software such as Quicken and Money, magnetic data files of per? sonal finance records should also be requested. Economists will generally rely on studies to derive an average rate of

personal consumption. Where extraordinary spending

habits can be shown, however, deviation from the average may be justified.

Examine the health of the decedent before his death. If a decedent's life expectancy was less than the norm for a per? son his age, the calculation of expected future?and therefore

lost?earnings will necessarily be affected. Identify medical

providers through interrogatories, and then subpoena medical records to obtain a complete picture of the decedent's pre occurrence medical condition. Don't rely on your opponent to

What is recoverable

lost earnings, grief, loss of consortium, care, society, guidance, love?

provide the relevant medical records. Plaintiff's motivation to find potentially damaging records is far different than yours, and you will therefore do a more thorough job. Remember, too, that your requests for the production of documents may not obligate the plaintiff to gather medical records not within his "possession, custody, or control."

If you uncover a significant medical problem, the legal sequelae may indeed be important. Lost earnings forecasts are generally made by calculations based upon mortality and work-life expectancy tables, all of which are based on aver?

ages. If medical expert testimony supports the conclusion that the decedent would not have lived as long as may have

statistically been expected, the defense economist may be able to use a shortened work life and/or life expectancy in these calculations.

If the recovery of lost earnings requires a determination that a beneficiary would have actually received the benefit of the lost earnings, inquire in discovery as to all past occasions on which gifts or support were given to each beneficiary. Explore the financial situation of each beneficiary to deter? mine when, if at all, each would likely have become finan?

cially self-sufficient. Some wrongful death statutes provide for compensation

for the grief of the statutory beneficiaries occasioned by the death. Where grief is a compensable item of damage, use dis?

covery tools?most likely depositions?to develop a com?

plete picture of how each beneficiary's life has been affected

by the death. In most cases, the beneficiaries will describe their tremendous grief as a result of the death, most of which is undoubtedly heartfelt. But discovery can help to provide some objective measurement of that grief, such as treatment

by a psychologist, psychiatrist, or other mental health coun?

selor; days missed from work due to depression; changes in social activity; or loss of a job due to changes in perfor?

mance. Of course, you need to know those things in evaluat?

ing and defending the claim. In some jurisdictions, the wrongful death statutes allow

recovery for loss of consortium, society, care, guidance, nur?

ture, advice, and training. Because each element requires a time commitment from the decedent, such a claim will pro? vide an opportunity for some imaginative discovery. Ask

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about the specifics of the activities that the decedent engaged in with each of the beneficiaries, including estimates of the amount of time involved. Combine these responses with those given regarding lost earnings and loss of household services to see whether the total picture appears to be realis? tic or (whether intentional or not) the claims are an exagger? ation. There are only so many hours in the day. The decedent could not have been a workaholic on the verge of earning promotion after promotion, a housekeeper who devoted half a day to those duties, and a nurturing parent who helped the kids with their schoolwork and hobbies. Remember that

questions along these lines are best asked in depositions, where the answers will be off-the-cuff and spontaneous rather than written responses carefully crafted by lawyers.

As items of recoverable damage have multiplied in recent

years, hedonic damages have received considerable atten? tion. As defense counsel, you need to determine whether

applicable law permits recovery for the decedent's loss of

enjoyment of life, and, if so, whether the measure of such

damages extends beyond the decedent's death. At least one state's wrongful death statute has been construed to provide for the decedent's post-death loss of enjoyment of life, and

plaintiffs' counsel have made inroads toward recognition of such recovery in other states. In Mississippi, for example, the pattern jury instructions, based on dicta in a state

supreme court decision, now include bracketed language that provides for hedonic damages.

In those cases where hedonic damages may be available, direct discovery at both the quantity and quality of pleasure that the decedent experienced from her life. Again, these

questions are most effective in depositions. Indeed, an inter?

rogatory on the subject is foolhardy for two reasons: not only will the response?written by a lawyer?undoubtedly pro? duce volumes about the many pleasures the decedent took from living, but it will also provide a script for the plaintiff's response to a similar question at plaintiff's deposition.

Try to obtain an honest and spontaneous response by ask?

ing the questions casually. Look for objective hallmarks of dissatisfaction and displeasure, including expressions of career dissatisfaction (for example, "she disliked her job"), manifestations of job dissatisfaction (for example, numerous

employment changes with little or no increase in compensa? tion or responsibility), marital or familial strife (for example,

marital separation, divorce, children with drug or alcohol

problems), and social inactivity. Ask about psychological counseling and diagnosis, which may evidence depression. Because mental or physical injuries can result not only in

unhappiness but also in the inability to work, discovery along these lines may prove helpful in defending against lost

earnings claims as well. Look carefully at the medical records. They may reflect the decedent's regular use of anti

depressants or medications for arthritis. Ask follow-up ques? tions about the decedent's physical and mental ailments and assemble the evidence to counter the hedonic damage claim.

An element of wrongful death recovery common to many jurisdictions is the loss of the household services that would have been performed by the decedent. Most forensic econo? mists have a particular study or set of studies to support assumptions?based on decedent's position in household, gender, and age?about the number of hours spent perform? ing household services.

Question the economist's assumptions. The hours are then

multiplied at some assumed wage rate to derive a dollar

value to replace lost services. The hours and wage rates are often and easily exaggerated. Moreover, plaintiff's counsel will occasionally ask the plaintiff's economist to assume that this decedent was not average and actually performed ser? vices well beyond the average. Tailor your discovery to determine the scope and quantity of the services actually performed by the decedent during his life. Ask about the ser? vices that the beneficiaries now pay to have performed that would otherwise have been done by decedent. Determine the cost of those services. Cross-check financial records against interrogatory responses to determine whether the interroga? tory answers can withstand scrutiny. Rarely will the evi? dence show that the beneficiaries are spending anything close to what their economist testifies they have lost in household services.

For example, if a widow claims that her deceased husband took care of the house, yard, and pool, request the financial records that reflect regular service by a pool company, a lawn and landscaping service, and a house painter. These

will likely be useful in diminishing the claim.

Although their characterization as wrongful death or sur? vival damages differs from jurisdiction to jurisdiction, sev? eral elements of damage available within the context of a death case are always considered from the perspective of the decedent. Perhaps the most controversial of these items of

damage and one on which there is a split of authority is

recovery for pre-impact fear.

The fact that there is an issue over the availability of dam?

ages for pre-impact fear likely arises from the common law rule that there could be no recovery for emotional injury absent a physical injury. If pre-impact fear may be com

pensable in your case, determine whether pre-impact fear can be presumed from the circumstances of the occurrence or whether the law will require some proof that the decedent

actually experienced that fear. Alternatively, must plaintiff present some evidence of decedent's reactions to the fright? ening events (e.g., facial expressions, gestures, or an excited

utterance)? Or is it sufficient that the factual circumstances would cause fear for the average person?

If proof of actual fear is required, ask about it. For exam?

ple, if the decedent was a passenger, what evidence will the

plaintiff have that the decedent was not asleep during the occurrence? If there were survivors of the particular event, their accounts of their own experiences prior to impact might be relevant to the issue. Moreover, one or more of them may well have knowledge of the decedent's reactions to the occurrence. In airline disaster cases, for example, surviving seat mates are potentially very important witnesses. Con? sider the possibility of a surviving seat mate who recalls that the decedent "slept through the whole thing." Such testi?

mony might provide the necessary ammunition for a motion for partial summary judgment on the question of pre-impact fear. On the other hand, surviving passenger testimony may devastate your case. In one recent federal bench trial involv?

ing an airline disaster, this element of recovery alone pro? duced an award of $1 million.

Consider whether you are likely to elicit helpful testimony by questioning fellow passengers. Evaluate whether your opponent is likely to adduce testimony damaging to the defense if you forego such questioning. Private investiga? tions or informal interviews (assuming that the interviewees

(Please turn to page 68)

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Defending

Damages (Continued from page 48) are not represented by counsel) may be an appropriate precursor to a deposition of such witnesses.

Another item of damage considered from the decedent's perspective is con? scious pain and suffering. Especially when the period of pain and suffering incorporates the last moments of the decedent's life, this can be a very emo? tional element of recovery that has the

potential to drive a verdict toward the

skyr If such a claim is present in your case, you may want to consult a foren?

sic pathologist to study not only the mechanism of death, but also the likeli? hood of consciousness after impact. This step may also require a specialized physicist (such as an aerodynamicist) to determine the physical loads placed on victims during the impact. The

pathologist can then consider the physi? cian's conclusions, and base his opin? ion upon these conclusions as well. Medical and funeral expenses are

almost universally recoverable, some? times subject to a cap on the funeral or burial expenses. Use interrogatories and requests for production of docu? ments to determine the services that were provided and their respective

costs. In most cases, not much can or

should be done with this element of

damage. Unless the charges are grossly overstated or it is very clear that the services provided were inappropriate and unnecessary, there are few points to be scored in this department.

Just as the elements of damage that are recoverable may vary, so the meth? ods of calculation also vary. For exam?

ple, state law will determine whether

personal consumption and/or taxes are to be deducted from any calculation of future lost earnings. Likewise, state law

may determine the discount rate to be used in reducing future sums to present value or may otherwise address present value calculations. Pennsylvania law, for example, requires a certain proce? dural approach to be used in perform? ing present value calculations.

In recent years, some legislatures have instituted damage caps for speci? fied classes of cases, such as medical

malpractice, or types of damages, such as noneconomic. For example, Mary? land has a statutory cap?with an annual inflation factor?on noneco?

nomic damages in personal injury and

wrongful death cases. Defense counsel must determine not only whether the

applicable law includes any caps, but also whether any constitutional chal?

lenges of the caps have been success? ful. Likewise, a number of jurisdictions have recently moved away from pure joint and several liability. Variations

range from solely several liability in tort, to several liability only for speci? fied classes of damage, such as noneco? nomic damage. Research the law of the relevant jurisdictions to determine which is likely to apply to your case.

Finally, as you vigorously defend

your wrongful death claim, as you try to limit damages and conduct exhaus? tive discovery in pursuit of your goal, keep in mind that you are dealing with the tragic loss of a priceless human life. Be sensitive to the emotional circum? stances of the plaintiffs. Losing loved ones through tragedy is a horror. Points will rarely be scored, either with the factfinder at trial or in settlement nego? tiations, by acts of insensitivity to the

feelings and emotions of the survivors. Before inquiring about a particular

subject that is likely to be upsetting to a

survivor, reflect upon several ques? tions: Is this an area that is important to the defense of the case? Are there other

means by which the same information can be obtained without inflicting addi

Nobody replied to him, that I could hear.

"My God," Gil said, "I knew it didn't feel right. I knew we should wait. That bastard Tetley," he finished.

Everybody would hang it on Tetley now. I didn't say anything.

The sheriff was stern, but he wasn't the kind to gabble easily, like Tyler. He

was a small, stocky man with a gray, walrus mustache and black bushy eye? brows. He had a heavy sheepskin on, with the collar turned up around his ears. His deep-set, hard, blue eyes looked at each of us in turn. Nobody but Tetley tried to hold up against his look, and even Tetley failed. When he'd made us all look down, he

said something we couldn't hear to the

Judge. The Judge began to sputter, but when Risley looked level at him too the

sputter died, and the Judge just stared around at us belligerently again, thrust?

ing his lower lip out and sucking it in and making a hoarse, blowing noise.

Risley sat silent for a moment, as if

considering carefully, looking us over all the time. Finally he stared into the snow over us and the milky blue shadows of the trees through it and said, "I haven't

recognized anybody here. We passed in a

snowstorm, and I was in a hurry." "That's collusion, Risley," the Judge

began loudly, getting redder than ever. "I'll have you understand I won't..."

"What do you want to do?" Risley cut in, looking at him.

The Judge tried to say something impressive about the good name of the

valley and of the state, and the black mark against his jurisdiction and Ris?

ley's, but it was no use. Everybody just waited for him to stop; he couldn't hold out against all of us without Risley. When he was just blowing again,

Risley said, "I'm not even looking for the leaders. Nobody had to go if he didn't want to."

He went on in a changed tone, as if he had finished unimportant preliminaries and was getting down to business.

"I'll want ten men for my posse." We all volunteered. We were tired,

and we'd had plenty of man hunting and judging to hold us for a long time, but we felt he was giving us a chance to

square ourselves. Even Tetley volun? teered, but Risley didn't notice him; he

passed up Mapes also. But he took Winder, which added Gabe Hart, and he took Moore, and after looking at him for a long time he took Farnley. Kinkaid looked up at that, smiled a lit

tie and raised one hand off the horn just enough so Farnley could see it. Farnley straightened as if he'd had half a life

given back to him. Farnley was mean with a grudge, but honest. If he didn't like Risley right then, he liked himself a lot less. When Risley had selected his ten

men, he ordered the rest of us to go home. "Go on about your own busi? ness," he told us. "Don't hang around

in bunches. If you have to tell anybody anything, just tell them I'm taking care of this with a picked posse. You can't

stop the talk, but there'll be a lot less fuss if you keep out of it. Nobody knew these men."

He turned to the Judge. "It'll have to be that way," he apologized.

"Perhaps, perhaps," the Judge mut? tered. "All the same?" and he subsided.

Actually, though, he was relieved. We didn't have to worry about him. 10

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tional emotional trauma? Is there a less traumatic way to ask the question and still get the necessary information? When meeting the decedent's family

members for the first time, express your condolences over their loss of a loved one. Such a warm and humane state?

ment is not an admission that your client is responsible for the loss and is

likely to help take the edge off before the deposition begins.

Putting a price on a priceless human life is a challenging task. But our legal system requires just that?and requires zealous advocacy on behalf of both sides?in wrongful death litigation. Bright, careful, and creative defense counsel are not without tools to per? form their task. And if they are consid? erate of the tragic loss, they can use these tools in a way that is both strate?

gically and humanely sound. IP

From the

Bench (Continued from page 6)

witness has gotten paid handsomely for her opinion; your client has a history of criminal convictions; and the pho? tographs of the autopsy are graphic and

gruesome. Talk about those matters and diffuse them as early as possible. Don't wait for opening statements. It may be too late.

Thus, you may wish to address the

payment to the expert by saying: I will be calling Dr. X as our

expert witness to the stand. Dr. X has received money from us to review this case and offer her

opinion. Would you agree that Dr. X needs to be compensated for her time and not be expected to work for free? Will you hold it against my client or against Dr. X when

you hear that?

As for the photographs, you may ask, "Would you be able to look at pho? tographs even though they are bloody and gruesome?" This is your opportu? nity to eliminate any prospective juror that may be squeamish or will be nega? tively affected by the photographs.

You might introduce the issue of prior arrests by saying: "When my client was

young and foolish, he got arrested for

drugs. Will the fact that he has prior felony convictions affect you? Ms. Jones, do you believe that this case must be judged on the law and facts of this case? A lot of us do foolish things that we later regret. Will you stay focused on the facts of this case and not be swayed on matters that are not relevant?"

Then ask a juror, "Why is that impor? tant?"

Opening Statements 1. Take the time and trouble to

prepare your opening carefully. Although this suggestion may seem

obvious, most openings tend to be hap? hazard and literal recitations of the evi? dence that will be presented. Some

lawyers do not prepare very well for

opening statements. They seem to reserve their energy for the testimony at trial and the big closing argument. This is a big mistake.

Opening statements may well have an impact on the outcome of a case,

particularly in a short trial. Jurors tend to form opinions based on the opening statements. This is your opportunity to talk about your case and to focus on

what needs to be emphasized at the outset of your case. This also allows

you to build on what was discussed and learned in voir dire. First impres? sions last. Take care to present a clear

story that will make the jury want to take your side and to look at the evi? dence in the spirit in which you have offered it. As in voir dire, speak plainly, with your neighbors, and not at the jury.

One of the best ways to prepare for

your opening statement is to think about your closing argument. Make an outline of whatever you plan to argue in

closing, and use that as a guide for your opening statement. This will keep you focused. State the facts clearly and con?

cisely and inform the jury of your the?

ory of the case. Later, the court and jury will have the story reinforced through witnesses, cross-examination, and

closing argument. In some jurisdictions, the defendant

may waive or reserve opening state? ments. It amazes me when attorneys either waive or reserve openings. Defense attorneys who do this appar? ently believe that they will benefit by hearing about the plaintiff's evidence before deciding what to say. Generally, this ends up being a mistake. If the jury hears from only one side, they may con? clude that the facts may not be disputed.

They will form opinions that may be dif? ficult to dislodge. Take advantage of the

opportunity to speak to the jury and tell them about your case.

Avoid the mistake that one young, nervous lawyer made. The lawyer reserved opening statement, and then

forgot about it when he started his part of the case. Keep that in mind next time

you think about reserving your opening statement.

2. Above all, maintain your credi?

bility. Do not tell the jury something in

your opening statement that you do not

expect you will be able to prove. For

example, if you unequivocally tell the

jury that all the doctors will testify that the plaintiff's injury occurred in a cer? tain way, be prepared to back that up.

Your opponent may effectively dis? credit your case by reminding the jury that you told them something that was not accurate.

If you are defending a physician in a medical malpractice case involving a

highly sympathetic patient with severe

injuries, acknowledge the obvious

injury and focus on key disputes. At this

juncture, know how strong or how weak

your case is and present it to the jury in the best possible light. Be forceful and

positive. Be prepared and be honest.

3. Keep it simple (again). If you are involved in a complex products liabil?

ity case or a first-degree murder case, try to organize your presentation in three or four steps. If you overload the

jury, they are apt to become confused or overwhelmed or possibly bored. As in voir dire, speak in plain English. As an example:

(a) tell the jury what happened (who, what, when, where and

how);

(b) cover your legal issues (theory of your case), but don't overdo the legal jargon;

(c) tell the jury what each side

says happened; and

(d) set out what you believe will be proven, and why the evi? dence leads to a certain con? clusion (presumably, in favor or your client).

By sticking to these basic steps, you will keep your presentation simple, organized, and comprehensible.

4. Do not be argumentative. Some

lawyers try to argue their case in their

opening statements. If an objection is

made, most judges will sustain it. You

Litigation Summer 1997 Volume 23 Number 4

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