TRIAL DIPLOMACY JOURNAL

Vol. 19, 37-42 (1996)

Bruce H. Stern

Princeton, New Jersey

The opening statement in a mild traumatic brain injury case must highlight the devastating nature of the plaintiffs injury and diffuse the defense's attempts to focus on the plaintiffs appearance of normalcy. Provided here is the framework for such an opening.

The plaintiff's opening statement in a mild traumatic brain injury case differs from any other opening statement. While the case involves a dramatic and potentially catastrophic injury, the plaintiff will look and sound normal. It is the devastating brain injury that will be the focus of the plaintiff's case and the plaintiff's appearance of normalcy that will be the crux of defendant's case. The plaintiff's opening statement in a mild traumatic brain injury case must highlight the first and diffuse the latter. This article presents the framework for such an opening statement.

In most states, the opening statement is plaintiff counsel's first opportunity to speak to the jury and to communicate as an advocate on the client's behalf. The importance of the opening statement cannot be overstated. Indeed, various studies indicate that most jurors make up their minds in the first minutes of the trial. Peter Perlman, former ATLA president, stresses the importance of the opening paragraph in the opening statement:

The first two minutes of the opening statement may be the most important two minutes of the entire trial. The opportunities presented to the attorney during this time can never be recaptured.1

Similarly, authors Thomas Sannito and Peter McGovern observe:

Whatever method he or she selects for the opening statement, the attorney must be at his or her best during this process. While all segments of the trial contribute to the final verdict, the opening statement is particularly important, because of the first impression, or primacy effect. First impressions count more than those formed by later information.2

Regardless of the uniqueness of trying a mild traumatic brain injury case, the opening statement, as in all other cases, must follow certain rules and principles. The opening statement must contain the theme of the case, is best presented in story form, and should address any weaknesses inherent in the case.

The trial of a personal injury case can be described as a war. One side will be on the offensive while the other is on the defensive. Because plaintiff's counsel goes first, the plaintiff has the unique position of being able to go on the offensive and to keep the defense back-stepping the entire way. It is extremely important in a trial that the case be tried on the issue or issues presented by the plaintiff. All too often, the defense is able to select an issue that will decide the case. Oftentimes, this issue may not even be pertinent to the "real" issue at trial. This cannot happen or should not happen if plaintiff's counsel presents a strong opening argument that sets the tone for the entire trial.

Trial attorney Fredric G. Levin explains:

Too often, lawyers view an opening statement as something which is a necessary part of the trial, which can be dispensed with as rapidly as possible in order to get into the actual trial itself--that is, the presentation of evidence. Many lawyers have been taught that the opening statement is simply an opportunity to present to the jury a brief sketch of what the evidence will prove. Such an attitude is the first step toward losing a case, or at the very least, attaining something less than an optimum result.

Once you have developed a theme for your case, the opening statement constitutes the most vital portion of the trial--and the key to victory. It is an opportunity for plaintiff's attorney to subtly weave his theme into a fabric that will put his case virtually out of reach of the defense--barring unexpected developments later on in the trial.

Opening statement is unique as compared to summation, in that plaintiff's counsel can completely prepare it prior to trial.3

The theme in the mild traumatic brain injury case will, in one form or another, always involve the issue that the plaintiff is no longer the person he or she was before the accident. The plaintiff's lay witnesses will present testimony describing all aspects of the plaintiff, before and after the accident. Plaintiff's physicians will establish that the plaintiff's cognitive abilities have diminished since the accident. Coemployees will establish the difficulties that the plaintiff is now having at work with tasks he or she was able to do effortlessly prior to the accident. Therefore, whatever theme is used, it must clearly establish this "before and after" person.

Noted trial attorney Gerry Spence instructs:

Select a phrase, a theme, a slogan that represents the principal point of our argument. The theme can summarize a story that stands for the ultimate point we want to make, a saying, as it were, that symbolizes the very heart of the issue.

The selection of a theme aids us in understanding the nucleus of the argument and creates a mental image more moving than all the words we so carefully chose to make the formal argument.4

After choosing a theme, it is necessary to then build a story around the theme that dramatically emphasizes the "before and after" plaintiff. Again, Mr. Spence advises:

The story is always built around the thesis, a point of view that is advanced by the argument. Ask yourself, "What do I want?" I want justice for the family whose father was killed by defective brakes. The thesis that the manufacturer's greed is responsible for the death of my client. We obtain what we want with the core argument, the thesis.5

Every argument, in court or out, whether delivered over the supper table or made at coffee break, can be reduced to a story. An argument, like a house, yes, like the house of the three little pigs, has structure. Whether it will fall, whether it can be blown down when the wolf huffs and puffs depends upon how the house has been built. The strongest structure for any argument is a story.6

Weave into your story the testimony of the "before and after" lay witnesses. Having prepared and tried mild traumatic brain injury cases, the trial attorney knows that the key to proving the plaintiff's case lies not with the doctors and the many other experts or even with the plaintiff's own testimony. The key to a successful outcome lies with the lay witnesses.

In today's climate, jurors are well familiar with and truly believe that expert witnesses are simply hired guns, easily purchased and retained.

The testimony in a mild traumatic brain injury case from the neurologist, neuropsychologist and others in the medical field is often complex, confusing, and well over the head of the average lay juror. The testimony of the lay witness, however, is not only crucial to the case, but keenly understandable. The lay witness is the person to whom the average juror obviously can relate. For all these reasons, your opening statement must not only include, but highlight in story form, the testimony you intend to present from the lay witnesses.

The trial of a mild traumatic brain injury case presents the plaintiff's trial attorney with an incredible challenge. In virtually all mild traumatic brain injury cases, the following facts are true:

1. standard neurodiagnostic tests are normal;

2. there was minimal, if any, loss of consciousness; and

3. the plaintiff does not appear injured.

The defense will stress these points over and over again. Each doctor who takes the stand will be questioned and cross-examined about the normal diagnostic studies. Defense counsel will stress the minimal, if any, time of unconsciousness, the fact that the plaintiff was seen only in the emergency room of the local hospital, and that the plaintiff certainly appears normal sitting at counsel table.

In the opening statement, the jury must be told that these standard neurodiagnostic tests are not sophisticated enough to detect the subtle microscopic abnormalities that have occurred in the plaintiff's brain. Explain to the jury that, consequently, the neurologist referred your client to a neuropsychologist who has the necessary tools and tests to detect and diagnose his or her brain injury. Rather than presenting this in a defensive mode, however, weave it into the story so as to deflect the weaknesses of the case.

Gerry Spence writes:

Concession is a proper method both to achieve credibility and to structure an argument successfully. I always concede at the outset whatever is true even if it is detrimental to my argument. Be up-front with the facts that confront you. A concession coming from your mouth is not nearly as hurtful as an exposure coming from your opponent's. We cannot be forgiven for any wrong doing we have committed and tried to cover up. A point against us can be confessed and minimized, conceded and explained.7

With these thoughts in mind, turn to a sample opening statement in a mild traumatic or postconcussional syndrome case to explore how to mold a dramatic, strong, and effective opening statement:

On Nottingham Way, on the 300 block, there sits a two-story colonial similar in size and appearance to other houses on the street. At 8 o'clock each night, Sally gathers up her two children and takes them upstairs so they can brush their teeth, wash their faces, and go to the bathroom. They argue as usual over which book Mom is going to read them, but eventually they settle down on her bed and she reads and then sings to them softly. At 8:30, she takes Carol to her room and tucks her in. Carol then says the same prayer she's been saying ever since her daddy was hurt: "God bless Mommy, God bless Mark, and God bless Daddy, may he get better and come home soon." Sally leaves her daughter's bedroom and tucks in Mark, and he says his prayers: "God bless Mommy, God bless Carol, and God bless Daddy, may he please get better and come home soon."

With tears in her eyes, Sally walks downstairs to the kitchen table, where the stack of unpaid and delinquent bills sits, getting bigger day by day, week by week, month by month.

There's another house--this one on Chestnut Avenue in Chambersburg, the Italian section of Trenton, New Jersey. On the 200 block there sits a rowhouse, two apartments, one downstairs, one upstairs. Upstairs is a small, barely furnished apartment. There's a living room, a small kitchenette, a bathroom, and a bedroom. The apartment is furnished with used furniture, a secondhand couch scarred with cigarette burns from a previous owner, and a small table in front. On that couch every night Sam sits staring at a TV that was recovered for him by his brother-in-law from the curb where it had been put out for the trash. A coat hanger is attached to the broken antenna, the picture fuzzy. Every night at 8 o'clock, Sam sits staring ahead, watching the TV with a partially undercooked or overcooked TV dinner sitting on the table in front. Occasionally, when luck shines on Sam, he remembers to pull the TV dinner from the oven at the correct time. Usually it is overcooked and occasionally blackened when Sam forgets that he had put the dinner in the oven. Most nights, though, Sam just stares ahead, remembering that this is not how it used to be, that once there were not two houses in different parts of the county, but one house, the one on Nottingham Way where Sam lived with his wife and his two kids.

Larry Neighbor remembers a happy family that lived next door on Nottingham Way. He remembers seeing Sam always outside playing with his two kids, kicking a soccer ball or pushing them on the swing. The lawn out front, now brownish from not being watered, badly cut, used to be the pride of the neighborhood. Sam was always out working on his lawn if he wasn't playing with his kids. He was meticulous in his care for his house and lawn. Larry now misses his neighbor and friend. He hasn't seen him in over a year.

It seems like only yesterday to Larry, but in fact it was four years ago. He remembers Sam pulling out of his house in his Buick, giving him a wave, telling him he was just going to run down to the local Chinese restaurant to pick up some food for his kids and his wife and did Larry need anything while he was out. Sam had pulled out of the driveway onto Nottingham Way, made a right turn down to the light. It was November 5,1992, a Sunday afternoon. He had watched his New York Giants win again and he was in a happy mood. He was looking ahead, listening to the postgame on the radio, when all of a sudden he heard a squeal of brakes and a loud crash and was jolted forward and backward in his seat. He wasn't sure whether he had lost consciousness or not. He seemed a little dazed, a little groggy, and he had to hold onto the door as he got out to see what had happened. He knows the police arrived, but doesn't remember what was said. He was asked if he wanted an ambulance. He said no, he was fine, please would somebody call his wife. Ten or fifteen minutes later, Sally arrived with Larry. Larry was driving. They both insisted that Sam go to the hospital, and they took him to the local hospital. He was checked out; fortunately, there were no broken bones. Sam still felt a little dizzy, but was otherwise all right. They told him he could go home and to check with his family doctor the next day.

In the morning, Sam felt a little stiff, with a slight headache. As they had told him the day before, he called his family doctor, Dr. Smith. Dr. Smith told him to rest, that the first appointment he could get would be the next day. He went and saw Dr. Smith, who checked him out and pronounced him okay. He told him he probably had a slight concussion, but that he would be fine, that he should take a couple of days off from work and rest and he would be fine.

Sam had worked at the naval propulsion plant for eight years. He hardly ever missed a day, and he wasn't going to start now. Disregarding the doctor's advice, he went to work the following morning. Byron Scott, his coemployee, was glad to see him. The first thing he asked that next day was what happened, where have you been, are you okay. Sam told him he had been involved in an accident, but was otherwise feeling pretty good. But as the weeks and months progressed, Byron noted a change in his friend and coemployee. It was little things at first. Sam forgot to do this or Sam forgot to do that. As time went on, it got worse and worse, and Byron had to begin to cover for his friend. He finally convinced him to go back to his doctor; something just didn't seem right. That easygoing, hardworking guy he once knew seemed aloof, forgetful, irritable.

Sam went back to Dr. Smith, who thought he ought to be checked out by a neurologist, Dr. Homes. Sam went to see Dr. Homes. Dr. Homes basically said the same thing as Dr. Smith. "You probably had a slight concussion, but to make sure we'll order some tests and see if you're okay." They ordered a CAT scan and even an MRI and an EEG. These tests were fortunately all normal. Dr. Homes told Sam that he just had a slight concussion and these problems would resolve quickly, within the next two or three months.

Back at work, Byron couldn't continue to cover forever. When you're working on naval propulsion engines, a mistake could be fatal. Finally Byron reported his friend Sam to his supervisor. The supervisor kept track of Sam, followed his work for the next two to three weeks, and with Byron not covering and protecting his friend, the errors mounted and were easily discovered. Sam was called into the supervisor's office and told that if his work did not improve, he would be let go. That night, Sam went home and told Sally what had occurred. The next morning, Sally called the neurologist. Sally wasn't surprised by what her husband had told her. Sam wasn't the same person she had married and lived with for the last 12 years. He was different. It wasn't just that he was forgetful, absent-minded, or even sometimes irritable. His personality was different. He wasn't fun. He didn't play with the kids anymore. The grass didn't look the same.

The next day, Sally took Sam back to the neurologist, and she told him all of the problems that Sam was having. The neurologist recommended that Sam see Dr. McGovern, a neuropsychologist, and Sam asked why. The neurologist explained, "Sam, you know all of those tests that we had ordered, the CAT scan, the MRI, the EEG, those are all tests to determine whether there is any gross abnormality going on in your brain. Unfortunately, these tests are not sophisticated enough to detect the microscopic damage that can occur when you suffer a concussion. The MRI, the CAT scan, the EEG cannot detect damage to the neurons, and that is why I want to refer you to a neuropsychologist who has a doctorate in neuropsychology, and through the administration of tests can detect and better diagnose damage to your brain and the effect that damage may have on your everyday living and functioning."

A week later, Sam saw Dr. McGovern, who tested Sam for eight hours. His diagnosis: traumatic brain injury.

Today there are two homes in Mercer County and one broken family. In one home lives Sally and her two kids, every night praying that Dad will come home well again. In that other home on Chestnut Street sits a man who so strongly tried to keep his family together. When Sam lost that job at the naval propulsion plant and the next two jobs after that, it was more than he could take. He started to drink, and drink too much. Sally could take no more. This was not the man she had married. She tried and Sam tried. Today Sam sits staring at a fuzzy television screen, a burnt TV dinner sitting on his table--he, too, hoping that one day he can go home. Unfortunately, it's never to be.

Clearly, the theme of the opening statement is "two houses, two families, where once there had been only one." The opening paragraphs vividly and in detail describe the two homes that now exist. This depicts the overwhelming sadness and breakup of the family.

Contained throughout the opening are short vignettes from the lay witnesses, the neighbors, and coemployees, who will testify as to how Sam was both before the motor vehicle collision and afterward. They depict a hard-working individual who took pride in the work that he did. They provide insight into what was once a close-knit family of four. They also contrast the Sam and Sally they knew before and how their lives are no longer the same.

Note how the weaknesses in the case--the early opinions of the doctors that Sam would recover, the normal diagnostic tests, and the fact that Sam appeared okay and missed very little work immediately after the accident--are explained, not as concessions at all, but simply as facts. Now when the defense attorney rises to give his or her opening statement and harps on these weaknesses, the jury will be less impressed, having already been told and already comprehending why these facts, which are so important to the defense, are no longer weaknesses at all.

When giving the opening statement, the plaintiff's attorney should not delve into the complexity of the neuropsychological tests. Nor should counsel discuss the particular deficits outlined in the neuropsychologist's report-- terms such as visuospatial constructional ability impaired, immediate visual memory worse than immediate verbal memory, perceptual organization impaired, and the like; these will have absolutely no meaning to the jury. These neuropsychological tests are extremely complex. Rather than discuss these tests in detail, describe what the neuropsychologist did in language that a neuropsychologist would use in speaking with the patient. It is sufficient to simply state in the context of the story that the neuropsychological testing confirmed the complaints of the plaintiff and those observed by the lay witnesses.

The opening statement is the mild TBI plaintiff's greatest weapon. While weak facts, an unlikable plaintiff, and badly qualified experts will surely bring down any case, a good opening pins the defense back on its heels and puts the plaintiff on the offensive.

ENDNOTES

1 Peter Perlman, Opening Statement: The Two-Minute Warning, 15 Trial Dipl. J. 167,167 (1992).

2 Thomas Sannito & Peter J. McGovern, Psychological Factors That Make an Opening Statement Unforgettable. 14 Trial Dipl. J. 73 (1991).

3 Frederic G Levin, Effective Opening Statements: Attorney's Master Key to Courtroom Victory 103-104 (1988).

4 Gerry Spence, Let Me Tell You a Story, Trial, February 1995, at 77.

5 Id. at 74.

6 Id. at 73.

7 Id. at 78-79

Reprinted by permission of Trial Diplomacy Journal (1996)