Brain damage cases are some of the most difficult to try. One reason is that if the brain damage fails to show on a diagnostic film, you are trying an “invisible injury” case.
By Shareef Rabaa.
There is no one correct way to pick a jury. Each juror pool, jurisdiction and judge is different. To be a plaintiff’s attorney with such a daunting task, you must be well-prepared in picking your jury. By keeping specific goals in mind and by being a leader and guide for the jury, an attorney can win justice for their clients.
Brain damage cases are some of the most difficult to try. One reason is that if the brain damage fails to show on a diagnostic film, you are trying an “invisible injury” case. Currently, there are various neuroradiological techniques that can be used in diagnosing and proving brain damage, but that is for a different article.
Brain damage cases are very difficult because jurors must cope with the frailty of their own lives. In a brain damage case, they have to come to grips with the fact that our seemingly strong bonds in our “outside” world (our relationships with our family and friends, our behavior and our job) are held together by the most microscopic and frail of “soft-tissue” bonds inside our skull. The stakes are even higher when we consider the anti-plaintiff sentiment across much of the country, as well as the high value that many brain damage cases are worth.
Before jury selection, you should set goals and a schedule of what your want to cover in the selection process, using your knowledge of the rules of the jurisdiction, like time limitations. Goals that you should have for every jury selection in a brain damage case include:
Another preparation for jury selection is to determine who you are to the jury. Remind yourself that it is your job to be the leader and guide to the jurors for their journey for truth. Being a good leader means several things:
Don’t be afraid to test jurors. Testing jurors is needed for various reasons. The trick to testing jurors is to do so with questions with very few assertions. Questions keep the jury involved. Questions keep the jury thinking. If you make too many assertions without questions, you will lose your jury’s attention and your leadership position.
A leader is open to different opinions and viewpoints. With few exceptions, a jury will not be tainted by one juror’s opinion. Trust that the jurors as individuals aren’t going to change their own viewpoints simply because they heard an opinion from another juror, whom they just met.
Observe as much as you can without jumping to conclusions. If you have the time, don’t make snap judgments. Be patient. Observe each juror and their reactions to the situation. Look for acceptance of other jurors. Remember, you’re looking for a winning team for the community. Evaluating talent takes some time, if you have it.
Being a leader means that the jury respects you. It doesn’t mean that the jury likes you or doesn’t like you. Respect from a jury is much more important to you winning your case than a jury “liking” you.
A leader isn’t perfect. No one is. We all fumble at some point. A leader uses these mistakes as an opportunity.
Therefore, before you pick a jury, remind yourself that you want to be curious about the jury. Make sure that they’re an audience you can trust with the immense power they have. Think to yourself, “I’m picking a winning team for the community.” These reminders will put you in the proper perspective for jury selection, and remind you that you must press at times to get what you need or risk putting power in the wrong hands. They segment the trial in a way that you understand your role at that time of trial. You can’t win the trial at jury selection, so this alleviates the stress you may feel of having the entire trial on your shoulders.
An important goal in jury selection is to stoke curiosity about the brain and the body. You can start this segment of the jury selection with something like:
“You’re going to be learning a lot about the human brain, how your brain is who “you” are and how it controls everything that you do. Is there anyone here who knows a little bit about how your brain works?” or “Is there anyone not interested in how their brain and body works?”
From here, a discussion about the brain normally begins. You can then segue into neuroplasticity, genetics and whatever else may be relevant to the trial. Questions like “Does anyone know that your brain is constantly changing according to your experiences?” or “What do your parents, grandparents and great grandparents have to do with who you are?” These questions may seem innocuous to some defense counsel. But what you are setting up is a trial story where you can show that every connection in the brain of the plaintiff was earned through their life experiences and passed genetically from their forefathers.
During the trial, when you tell the before-and-after story of the plaintiff’s life, the jury is ready for the medical explanation. How the plaintiff’s brain connections were earned and then taken away from her by the defendant’s actions. By this point, the jury can understand the “outside” losses (relationships, work and daily routines) by understanding the “inside” damage to the brain. My goal with the medicine in every trial is: explain every “outside” loss through medical evidence of “inside” losses.
If you don’t understand the medical issues in your case, how do you expect the jury to understand them? Gone are the days that attorneys can solely rely upon experts to tell them what are the injuries in their case. In other words, handling a brain damage case means putting in the work and understanding the neurology from a molecular level on up. This will not only help you communicate the medical issues to the jurors, it will open up avenues of advocacy for you in conveying the real-life consequences of brain damage. Failure to understand the medical issues does not guarantee failure, but it does guarantee that you will be behind in virtually every aspect of a brain damage case. As plaintiff’s lawyers, we must lead.
It is important to be precise in the language you use. It’s clear that our opponents are as well. How many of us have been in a deposition and the defense counsel asked your client about the impact of the “accident.” You can attempt to reframe the word “accident”:
Q: “We’ve been using the word accident for some time, now. What is an accident?
A: (Jury looking quizzically) A juror says, “Something somebody did by mistake.”
Q: “That’s what I think of when I think of an accident. Now, what if I told you that a person knew a safety rule, they knew violating that safety rule could hurt someone and they still violated that safety rule. Would you still call that an accident?” (At times, I will add an example and say, “Like texting while driving.”)
Some jurors say yes, some say no. But most of them think about it and that’s the goal. No matter what the answers by the jury, this is a question to use to not only reframe the word “accident,” but to get the jurors thinking about choices and responsibility.
Always have your labeling for the trial figured out and then use those labels throughout. For example, to express permanency in a case where there was a traumatic brain injury to your client, use the term “brain damage.” The word “injury” implies a temporary problem. Brain damage is not a temporary problem, it is a permanent disease.
The one juror you neglect in jury selection is almost always the one who will vote against your case in the verdict. This can be difficult. You must be disciplined in seeking out every juror and giving them the opportunity to join in the discussion.
When trying to learn about a juror, ask, “Where would you be if you weren’t here, today?” This allows you to discuss their responsibilities in the outside world. At that point, you can begin acclimating the jurors with safety rules, choices and responsibilities that are what allow society to run. An example of such an interlude often occurs similar to this:
Q: Mr. Smith, where would you be if you weren’t here today?
A: I’d be at work.
Q: And where do you work?
A: At the hospital, as a nurse in the ER.
Q: You must have a lot of responsibilities as a nurse in the ER.
A: Yes, it can be a very difficult job.
Q: Would you say the advantages of being a nurse are worth taking on the responsibilities of being a nurse?
Q: And when people are in the ER, some of those responsibilities are following procedures and safety rules, because the patient is literally putting their life in your hands?
Q: Is there any room in the ER for a nurse who doesn’t follow procedures and safety rules?
At this point, you can go further into the subjects you want to cover. It can be something like:
Q: And if this case was about a nurse who violated safety rules and caused someone brain damage because of it, would you be able to bring a verdict against that nurse?
Q: And would you be able to put money in a verdict to balance out everything that the plaintiff lost in her life?
From the minute you step into a courtroom, you should be preparing your jurors for your closing argument and arming them for deliberations.” Ask yourself, “What do the jurors need to believe in order to fight for my case in deliberations?” A couple of examples of questions to ask in jury selection include, “Can I prove brain damage to you when an X-ray and an MRI don’t show brain damage?” or “Are you open to the fact that a person doesn’t have to strike their head to cause brain damage?”
At this stage, you should prepare jurors to hear your major themes for the trial. In every civil case, impress upon the jurors their power to decide the standards of this community. These standards include community standards for safety as well as the value of human life in the community. Doing this makes the case “bigger” than your client.
Be sure to educate the jury about the reasons that the Founding Fathers created the civil justice system, as well as the community’s molding the rules of society through the civil lawsuits. This is a time where you can weed out jurors who don’t believe in the civil justice system, while preparing jurors for your closing arguments. Here is an example you can use:
Q: Does anyone here know what caps on damages in lawsuits are?
A: (Jurors nod.)
Q: Who do you think is the better judge of the value of human life -- the government or a jury of your peers in the community? Let’s go even deeper into caps on damages. I really like my pinkie finger and if I lost it would be a big loss for me. But I think that my life as a whole wouldn’t be devastated. I’d still be able to work and do what I love to do. Now, what if Billy Joel or Elton John lost their pinkie finger? Do you think that would be devastating?
A: Juror: Oh yeah, they would lose so much money.
Q: But it’s more than that, isn’t it? Playing piano is more than their work, it’s what they love to do, right?
Q: Now, do you think it’s right that the government would value my pinkie finger the same value as Billie Joel’s or Elton John’s pinkie finger?
Q: As a juror, can you stay open to and listen to the harms this crash has caused my client?
A: (Jury nodding)
Q: And if I prove the defendant’s actions negligently caused this harm to my client, can you balance out this situation by putting money in a verdict for every harm caused by the defendant?
Now you have some insight into how to pick a jury in a brain damage case. Prepare yourself. Try tough cases. Push yourself and your case and you will find the process to be rewarding.
Shareef Rabaa is an attorney with Weitz & Luxenberg in New York. He is a leading authority, lecturer and student of neurological injuries – traumatic brain injuries, in particular. He is the 2015 President Elect of the National Trial Lawyers’ 40 Under 40 group. He can be reached at (212) 558-5500 and SRabaa@weitzlux.com.