Communicating to Juries in Cases With Subjective Complaints of Pain
In researching a post yesterday for the Maryland Personal Injury Lawyer Blog, I stumbled upon the law review article SYMPOSIUM: COMMUNICATING WITH JURIES: Whipped by Whiplash? The Challenges of Jury Communication in Lawsuits Involving Connective Tissue Injury, 67 Tenn. L. Rev. 569 (2000). The article addresses the sometimes understandable problem plaintiffs' lawyer have in bringing soft tissue injuries to a skeptical jury. Most Maryland personal injury lawyers, do not bring many soft tissue claims to a jury because Maryland jurisdictional limits are such that connective tissue injury cases are usually tried before a judge (except in Baltimore because the district court judges are conservative and the juries are more liberal, many lawyers file what should be district court cases in circuit court). But the article made a number of interesting points that I thought many would find of interest:
1) The neck brace, which is obviously a common treatment for soft tissue neck injuries, appears to be a real lighting rod to jurors who view a neck brace as a potent symbol of fraud. The author contends that a neck brace "exacerbate[s] distrust and hostility., quoting one mock juror "I may see somebody with a neck brace. My first reaction is I don't believe you....." This does not surprise me. I had a case where a Baltimore City, jury awarded my client $300,000 and still on of the juror's told counsel later he believe she was faking her injuries to some extent. (The stunned defense lawyer asked incredulously "Then, sir, why did you give her $300,000?!" You had to be there but it was one of the funniest moments of my legal career).
2) Although there are studies that cast at least some doubt to this premise, the amount of damage to the vehicles in a car accident case are a crucial determinant of whether an injury is perceived as legitimate and serious. One participant comment that "Nowadays, the cars are made, they just bump into each other and there's gonna be some kind of damage. They just look at each other and they break. So, I mean, if there's no damage to the cars, it's kind of hard to think it'd be hard enough to injure anybody."
3) The article cites a poll that provided a systematic opportunity to ask potential jurors about their general views of the severity of different types of injury. Below is a table that provides the average rating given for different types of injuries that occur in automobile accident cases. The ratings are interesting and have some implications for communicating with not only with juries but also judges in bench trials.
Ratings of Injury Severity/Type of Injury Mean Rating of Severity
Trauma to internal organs 8.64
A ruptured disc 8.28
A back injury 8.07
A neck injury 7.97
A herniated disc 7.80
Bulging discs 7.67
A nerve injury 7.54
A broken bone 6.44
Whiplash 6.20
A connective tissue injury 5.91
Hyperflexion 5.33
A muscle injury 5.08
A soft tissue injury 4.65
Trauma to the skin 4.44
A skin laceration 4.00
A strain 3.77
A sprain 3.48
A bruise 2.38
Honestly, I'm not sure quite what to make of this information. But when I have to try a case that involves on some level subjective complaints of pain, I'm going to refer back to this post to consider the language I use when presenting plaintiff's case.
