GOOD COUNSEL.

Proving pain and suffering

Arguing pain and suffering is one of the most sensitive areas of trial practice. Oversell can be disastrous and turn off a jury. Undersell deprives the plaintiff of the right to full and fair compensation. So how should you approach the task?

The most persuasive argument arises from the evidence. Without solid evidence, the most eloquent argument rings hollow. Testimony from your client's friends, relatives, and health care providers often has more credibility than that of the client.

If your client is going to testify, he or she must be prepared carefully. No one likes a whiner. You client must be able to describe pain effectively without histrionics. Help him or her describe the pain in a matter-of-fact manner, without overly dramatic words like "horrible" and "devastating."

Suggest that your client compare the pain to something the jurors might relate to, like the sensation of slamming a car door on a finger. Where a client has unrelenting pain, emphasize the emotional side of pain more than the physical aspect. Your client's testimony on the unrelenting nature of the pain may drive this point home. He or she should discuss the pain's negative effect on his or her relationships with a spouse, parents, children, and friends.

Expert testimony from doctors and chiropractors may help in proving pain and suffering. Ask them about the need for pain medication and the risks of addiction. Be sure to prepare medical witnesses appropriately. Find out in advance whether they will give favorable answers to questions like, How severe is the pain? Is the pain so great that it could cause loss of sleep? Inability to concentrate? Significant personality changes?

Finally, in closing use a gentle approach when discussing monetary compensation. Avoid the hard sell. Don't suggest that your client ought to be compensated for the pain he or she suffers. Argue instead that a life free from pain is more valuable than money, property, or wealth.

Douglas E. Schmidt Minneapolis, Minnesota 

Deposing biomechanical engineers

In auto cases, defense counsel often hire biomechanical engineers to support the argument that the crash could not have caused your client's injuries. If the client suffered soft-tissue injuries to the neck or lower back, the expert may claim that the amount and direction of the force in the crash are not compatible with the injuries suffered.

Most biomechanical engineers are not medical doctors. When deposing ones with no medical background, emphasize that they have no medical training and have not examined your client. Argue that only your client's treating physician is qualified to talk about the injuries. If the biomechanical expert is a medical doctor as well as an engineer, his or her practice may not be as specialized as that of your client's treating physician.

During the deposition, focus on the engineering aspect of the expert's opinion and how tests, if any, were performed to substantiate the opinion. For example, perhaps the expert conducted a test using the same make and model vehicle as the one your client was in, but the person used in the test was taller than your client. This would not prove that the crash did not cause your client's injuries. Point out that your client is smaller than the person used in the test, and ask the expert if he or she took measurements of your client.

Did the engineer consider that the crash may have caused the car's doors, windows, or dashboard to intrude into the passenger space? The crushing of the car may have caused your client's injuries. Did the engineer consider the positions of the seat, backrest, and headrest during the crash and any re-enactment of the crash? Did he or she determine how much the seat belt had been spooled out during the accident? A slack seat belt restrains a passenger less, resulting in more injuries. Did the expert examine the car to see if the seat belt bolts were fastened correctly? Was the inertia reel calibrated correctly? All these factors affect the types of injuries suffered.

Spencer Aronfeld Coral Gables, Florida 

Using computer presentations in mediation

Mediation is a rare opportunity to gather all the key players in one room to try to resolve the claim before trial. An innovative attorney will use computer-generated presentations during mediation to lay out the client's case, while illustrating the substantial exposure that the defendants potentially face before a jury.

My firm has succeeded with computer-generated presentations in mediation for several reasons. The presentations--

1. provide a graphic portrayal of the case, without giving away your entire case.

2. allow you to hone in on and spotlight key documents in the plaintiff's case.

3. help you tell the plaintiff's story. For example, in a recent breast cancer case, my colleagues and I used a PowerPoint presentation to tell our client's story. Because she died during the pendency of the lawsuit, the computer presentation told her story in a more powerful and efficient way than would otherwise have been available to us. Pictures of her with her children and husband helped to illustrate the significant loss that her family suffered as a result of the defendant's negligence.

4. allow you to simplify the negligence theories to easily understood key points.

5. show the opposition that you are prepared; intimately familiar with the case; and ready, willing, and able to try the case in front of a jury.

In short, computer presentations give opposing counsel, defendants, and insurance claims representatives a true taste of what is to come.

James Bartimus Kansas City, Missouri 

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