After completing two jury trials recently, it caused me to reflect on what the experience must be like the client. From the attorney’s perspective, there is so much taking place in regard to presenting the case in an effective manner that we are at risk of not appreciating the emotional turmoil experienced by the client. For probably the first time in the client’s life they will be asked to describe to 12 strangers not only how they feel physically, but how they feel emotionally following years of pain. Just imagine stopping a stranger on the street to expose to that stranger your most inner feelings. If you tried such, the stranger would probably run from you thinking you are crazy, yet the client is asked to do essentially this during trial. You know, as a society we usually keep these feelings hidden away. You have to look no further for example in the common every day encounter with a friend out of public, where the friend asks, “how are you doing?” Isn’t the answer almost always: “Fine, how are you doing?” Even the first in chronic pain does not disclose in response to that question of how are you doing the fact that they are emotionally upset, depressed, were experiencing great emotional pain.
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When the client sees the doctor for their pain, typically the doctor is sympathetic to the needs of the client, and accepts the history given to the doctor by the client as though it were gospel. But then that same doctor shows up in the courtroom to offer testimony that may be contrary to what he or she said in their meetings with the patient. That is not the fault of the doctor, but it is the fault of the system which sets up a different standard than that heartfelt standard exercised in the doctor’s office. In short, the court will only allow the physician to offer opinions based on medical science, offer evidence of events that can be proven on a more probable than not basis, and, ultimately, for the first time the doctors opinions are subject to cross examination which may cause the physician to have to render an opinion unfavorable the patient. All of this often being heard of the very first time by the client.
It is not that the attorney does not explain what is going to be taking place during trial in a typical personal injury case, and it is not that the attorney has failed to tell the client what the physician is probably going to testify to on the witness stand, but I think the client approaches the case with such a deep-seated belief that the physician will be supportive that they are unable to fully reconcile what is being stated by the attorney versus their experience with the doctor in the clinic office.
Furthermore, it is so difficult to believe the 12 strangers, carefully selected by the attorney, might question the testimony offered by the client. After all, my client was the one that was hurt, so why should anyone question the testimony of the wrongfully injured client? Yes, we discuss the fact that there may very well be some jurors who doubt anyone that would bring a lawsuit, even my clients often introduce themselves to be at the beginning of our relationship, as someone who does not bring a lawsuit. Statement to me that they are not someone who would bring a lawsuit but for the fact that they were significantly injured tells me that typically they would be a doubting Thomas if they were part of the jury pool. The inference to be drawn from such a statement by the new client is that anyone who does bring a lawsuit must be someone who simply likes to sue people. In reality, 99% of my clients have never sued anyone until their unfortunate injury.
Even when the jury returns a verdict, a verdict that fairly compensates the client for pain and suffering, the client so often scratches their head wondering why the jury verdict was less than that which the client believed would be fair. So often we are able to compare that verdict in a client’s case to other recorded verdicts in similar cases, but the client may still be puzzled why the jury awarded less than that which the client thought was fair.
This is a time of great stress, emotional turmoil, and, hopefully, a sense of vindication upon receipt of jury verdict, but it is almost always disappointing at some level, even when the plaintiff’s attorney believes the verdict to be a very good outcome.
I share these thoughts with each client whether going to trial, mandatory arbitration, or mediation. Perhaps writing this blog will help me and my clients better understand what is in store for them if the case is not settled. Not all cases are settled, and many times if the case goes to trial, it was because settlement of the case would not have been fair to the client who was so badly injured. The best cases to take to trial are the cases where there is such a gap between the amount of money being offered versus the injuries and damages suffered by the client that both the attorney and the client believe that there is only one option which is to take the case to trial. Probably the worst cases to take to trial is where both parties are within a reasonable verdict range but they cannot reach a happy middle ground.
It is shame because if both parties read these reflective blog notes, I would think that even more cases could be settled without going to trial so as to avoid that stress that both the plaintiff and the defendant will go through while their attorneys fight so desperately for their rights. Trial is a good, healthy experience but it does come with the baggage of being stressful for the client.