Representing catastrophically injured clients.

Helping the client survive medically and financially is the trial lawyer's goal.

Representing catastrophically injured clients can be both challenging and rewarding. Whether dealing with a client suffering from a spinal cord injury or a serious brain injury, the trial lawyer can make a profound improvement in the client's life by bringing talent, creativity, and drive to the case. Before undertaking this sensitive task, it is essential to understand what will be required from first contact through trial.

First, the plaintiff lawyer must decide whether he or she can devote time, money, and emotional resources to the case. The lawyer must have the support of his or her family and the law firm.

There is no shame in associating with or referring the case to a lawyer who can make that commitment. The question is not what is best for the lawyer but what is best for the client.

It is critical to gain a full understanding of the client's disability early on. The lawyer must talk openly and honestly with the client about the injury and its effects. You may be one of the few people in the client's life who will discuss this.

It can be a lonely experience to be stuck in a body that does not function properly and not have anyone to talk with about it. It may be appropriate to recommend that the client talk with a therapist who is experienced in working with patients who have disabilities.

The plaintiff should be involved in all aspects of the case if possible. Remember, this lawsuit may provide the resources that will allow the plaintiff to thrive and develop as opposed to being warehoused in government "safety net" programs like Medicare. It is the plaintiff's case; even when the decisions to be made are obvious, you should discuss them with the client.

Treat clients with respect and dignity. Do not talk "over" them to family or care givers. A person suffering from quadriplegia may have a body that failed but a mind very much intact. Meet him or her on the same physical level. Stoop, sit, or crouch on your knees, but give the dignity of direct eye contact.

Communicate frequently with clients, even though there may be nothing dramatic to report. It may be difficult for clients to come to the office, so if possible, drop by their homes. Schedule your visits around the client's daily program, considering that it may take several hours for him or her just to get up, dressed, and fed.

If the client lives too far away for personal visits, maintain contact by telephone, mail, or e-mail. Even if the client is suffering from a brain injury and has limited participation in the dialogue, this personal contact is important.

Be honest with your client and do not create false expectations. If it is going to take you two years to prepare the case for trial, tell the client this. If the appeal process is going to take another two years, be honest about that. Do not be defensive about the delays built into the justice system. Also, remember that the client is often planning for financial survival based on the information you provide, so make sure he or she understands that victory is not guaranteed.

Financial needs and medical care

It is unethical to provide financial assistance other than advancing the expenses of the client's lawsuit. However, you can secure all insurance proceeds, government benefits, or other sources of income. For example, when pursuing a crashworthiness case with an underlying auto liability insurance policy or uninsured policy, you need to get those proceeds as quickly as possible and avoid turning them over to medical creditors or other lien holders.

Develop a good rapport with the medical insurer or employer under a self-insured plan so that these lien holders understand what you are doing and have confidence in you. Be open with them about your client's physical and financial condition, as well as the prospects for litigation. Often they will delay payment of liens so the client receives limited insurance proceeds while the case is proceeding. Your willingness to forgo fees at this stage will go a long way toward gaining a lien holder's trust. If the lien holder will not cooperate, you can collect your full fees and turn the proceeds over to the client.

Investigate benefits available through Social Security, Medicare, Medicaid, and other government "safety net" programs. Unfortunately, while Medicare, Medicaid, or private health insurance will pay the medical costs of care, they will generally not pay for 24-hour at-home care, so additional resources from insurance proceeds may be helpful.

Understanding the ins and outs of the safety net programs can be daunting. If necessary, hire a lawyer who is knowledgeable about Social Security, disability, or elder law to assist you. One way to protect resources from an insurance settlement may be to set up a special needs trust. Again, this may require the assistance of an attorney knowledgeable in this area.

Presenting the case

Do not over-try your damages case. One critical decision is how much of your client the jury should see. Should the client sit through the entire trial? Should he or she appear on videotape only--or even appear at all? Because each client is different, these decisions must be made case by case.

There is no substitute for having the client tell his or her story in person if possible. Still, the lawyer must balance the benefits of having the jury meet the client against the risk of overexposing the client. After several days of observing the client, jurors may become "numb" to the horror of the client's disability. They see a nicely dressed person sitting peacefully in a wheelchair and focus on that rather than on the enormous effort that the client and his or her care givers went through to even get the client to trial.

What jurors don't see are the hours it takes a person suffering from quadriplegia to be assisted out of bed, bathed, groomed, dressed, fed, and transported to the courthouse for a 9 a.m. trial. Be strategic about when your client is there. Do have him or her present for voir dire, opening statement, his or her testimony, and closing argument. If the trial contains several days of testimony from technical witnesses, bring the client back for an afternoon to remind jurors why they are there.

The words chosen to present damages can sway the case. A major theme should convey hope, not despair. Dwelling on how awful your client's life is may make jurors subconsciously conclude that there is not much they can do to change that. Empower the jury to help the client achieve self-sufficiency and productivity by providing sufficient resources for modern technology and competent care givers.

Skilled attorneys carefully choose their words. Telling a brief story about why a client is suffering from quadriplegia conveys a different message than just saying he or she is a quadriplegic. For example, the following is the beginning of the opening statement in McCathern v. Toyota:

   This is a case about Linda McCathern, who was riding in an unsafe vehicle
   that rolled over on the highway at less than 40 mph. She is now suffering
   from quadriplegia because of an accident that should never have happened.

Do not describe a client as a thing--a "quad" or "para." Do not turn the medical condition into a verb and say your client was "quadded" or "gorked." Although medical professionals, expert witnesses, and lawyers may use these terms casually, they have no place in the courtroom. This is part of treating your client with respect and dignity and encouraging the jury to do the same.

Do not talk to the jury about "awarding damages." It sounds too much like you want the client to win the lottery, to receive something that is not his or her due. Talk in terms of "repaying" the client for what was taken away.

Presenting experts

Though there may be no dispute about the injury, the first damages expert should teach jurors about the medical condition. A doctor who speaks clearly and with compassion might take on that role. In other cases, a nurse or life care planner might describe the condition so jurors clearly understand what happened and how it has profoundly affected your client.

Also, present testimony from nurses, care givers, or others directly involved in your client's day-to-day care. They are able to describe in human terms the client's condition and how he or she deals with it.

A rehabilitationist or life care planner will be essential to the case. This expert can quantify in economic terms what it will cost to care for the client on a year-to-year basis. The expert can also introduce the technology available to make your client's life easier and more productive, such as voice recognition computer software or computerized systems in the home for turning lights on and off.

The other essential damages witness is an economist, as most states require you to reduce future income loss and medical costs to present value. An economist who can tell stories to illustrate his or her points can help jurors understand how much money will be needed for the care described by the doctors and life care planner.

Be careful of the defense's annuitist. Admitting an annuitist's testimony can be devastating because he or she will testify that for "x" number of dollars an annuity can be purchased that will provide an income of"y" number of dollars per year for the rest of the client's life. This is essentially a structured settlement quote. Because annuitists may not understand the assumptions that go into the quote, it is difficult to cross-examine them about it. Their testimony should be inadmissible for being irrelevant because it does not give the required present value analysis and for being hearsay because the annuitist is only conveying a quote.

Telling a story

Using photographs and videotapes to show your client before and after the injury can be compelling. If properly done, a day-in-the-life film narrated by a family member or care giver rather than the physician may be most effective.

A long narrative by anyone can be tedious. Use family, friends, employers, and coworkers to tell the client's life story in a series of smaller anecdotes. Short stories illustrating some aspect of the client's life or personality can be both entertaining and meaningful. Remember what you want to do is convey hope, not despair, so that jurors will respond positively.

In closing, convey to jurors the great importance of the task that you are about to pass to them. If you do not feel that importance, you have not done a proper job for your client. To bring hope and meaning into a difficult existence can be one of the most satisfying things lawyers will do.

Jeffrey P. Foote practices in Portland, Oregon.