Unseen, but not unreal: it's human nature to trust what we can see and doubt what we can't. Clients and jurors need your help to identify and understand invisible injuries.

Many jurors find it hard to accept the validity of injuries they can t see, especially those not well supported by objective medical evidence. Nonetheless, these injuries are real, and treatment costs can be hundreds of thousands of dollars. Plaintiffs suffering from these injuries often endure lifelong pain and are unable to lead normal lives. This can lead to severe depression and even suicide.

As a plaintiff lawyer, you have a responsibility to help your clients recover all damages--past and future--that they deserve. But how can you recover fully for your clients if even they are not aware of the extent of their injuries or refuse to acknowledge them? How can you recover future damages if you cannot convince jurors that your client's unseen pain is real and substantial?

You cannot help your client or a jury understand the extent of the client's invisible injuries--physical and emotional--if you don't understand them yourself. The most common physical injuries include

* closed-head injury--a blow to the head that causes a minor concussion, though the patient appears to recover within hours or days; possible long-term effects including compromised mental efficiency, inability to focus or concentrate, slowed mental processing, loss of ability to multitask, fatigue, depression, and anxiety

* fibromyalgia--symptoms include chronic, widespread pain accompanied by fatigue

* chronic fatigue syndrome--an often debilitating disorder characterized by fatigue, pain, and cognitive disorders

* reflex sympathetic dystrophy or complex regional pain syndrome--a disorder of the sympathetic nervous system, characterized by chronic, severe pain without apparent cause.

The most common emotional injuries include

* post-traumatic stress disorder--an often debilitating condition stemming from traumatic events (generally violent) where a person emotionally relives the events and is unable to function normally (1)

* loss of enjoyment of life (2)

* loss of consortium.

Associations and foundations that conduct research on, and help those affected by, invisible injuries often provide useful information on their Web sites. (3) Many sites include easy-to-understand overviews, medical and technical papers, illustrations (many of which are useful in court), statistics, and links to health care professionals knowledgeable about the injury (potential expert witnesses) and local and regional associations.

Sometimes an injury is not apparent but can be recognized by the way a client feels and acts. Anxiety, depression, and inactivity are common symptoms for adults. Children and the elderly often have different symptoms, such as loss of focus, confusion, the inability to study, and failure to thrive. Anger, alcoholism, and drug abuse are common coping mechanisms.

Enlightening clients

I used to wonder why some people need help to identify their own pain. If they hurt, don't they know they hurt? Not necessarily. After seeking help from unsympathetic health care providers and listening to well-intentioned friends and relatives, people may dismiss their pain as being "all in their heads."

Also, clients may not discuss their pain if they think it is just part of life, imaginary, or manageable with coping or accommodation strategies such as meditating or avoiding stress. They may believe that their pain will simply go away eventually.

How can you help clients find, identify, and talk about their invisible injuries?

Listen. Create open, understanding, and compassionate dialogue. Clients must be able to discuss the nature and extent of their loss and pain without fearing ridicule. Assure your clients through voice and action that you do not view them as whiners when they speak about their pain. Don't rush them to the next item by asking leading questions. Sometimes the best way to encourage your clients to talk is to keep quiet until they have exhausted their willingness to speak.

Foster relationships. Sit next to clients, not across the desk from them. Background music can send a welcoming message. Offer them a cup of tea: Coffee can increase anxiety, but a warm mug of herbal tea can be relaxing. Also, an offer of coffee may be seen as perfunctory, but an invitation to share a pot of tea is perceived as welcoming, warm, and friendly.

Give your undivided attention. Tell your assistant in front of the clients that you are not to be interrupted. Create unhurried, uninterrupted consultations. Don't look at your telephone, your watch, your computer monitor, or out the window. Be with your clients 100 percent.

Visit clients in their homes. Many people feel more relaxed in their homes, so you can observe behavior there that you would not see in your office. Conditions in the home may point to problems. An untended flower bed may reveal a previously undisclosed back injury, a fear of going outdoors, or depression. Home visits show that you care and bolster clients' confidence in the quality of your work.

Recognize that physical and emotional pain are different. Emotional pain may be more difficult to articulate than physical pain. Many clients cannot communicate the pain they experience after losing a spouse or child. By creating a supportive environment, you can en courage them to open up about both emotional and physical pain.

Remember that pain is not the only indicator of invisible injuries. Encourage your clients to talk about everything that is different after the accident or injury. This can reveal a great deal. For example, a client may recognize that after she fell and hit her head, she no longer listens to music or attends concerts. This could point to a loss of hearing or neurological damage.

Look for withholding. Some people believe they have a responsibility to make their injury or pain go away. If they cannot "manage" their pain, they may try to minimize or hide it. Others believe they have a responsibility to protect themselves from injury and may feel ashamed that they were hurt. To downplay their true condition, these people may withhold information. Watch for signs of withholding to help your clients recognize their losses and develop a more realistic view of personal responsibility.

Often, when we encounter withholding, or the "John Wayne Syndrome," we get needed information from the client's family, friends, or coworkers. In a recent case, our client insisted--and testified--that he did not have a brain injury. He also insisted he had never been to Disneyland. His wife produced photographs of the family's trip to Disneyland.

Be sensitive to gender, age, ethnic, socioeconomic, religious, and cultural issues. A 65-year-old minister's widow may feel uncomfortable talking to a 32-year-old male lawyer about loss of consortium. Likewise, in a security negligence case, a woman who was assaulted by a gang of privileged fraternity boys would probably have difficulty trusting a lawyer who was a recent graduate of Harvard Law School. Have the client meet with a staff nurse or legal assistant who shares a common background or experience.

Recognize when a therapist can help. People often hesitate to talk to others about personal issues, things that make them feel inferior or ashamed, and thoughts that lead to more pain. The act of talking about pain and loss can itself be excruciatingly painful for some people. It may be appropriate to refer such clients to a licensed professional therapist. Establish relationships with a few therapists before you need them so you can refer your clients with confidence. Conduct a workshop or meet with therapists in person to teach them to find and identify compensable losses.

Many clients do not recognize that emotional pain is compensable. They may think this pain is their personal burden to bear. You must help them understand that emotional pain is an integral part of their loss and that they deserve flair compensation.

Convincing jurors

After identifying your client's injuries and helping him or her acknowledge them, you must convince jurors that they are real. You can use many techniques to explain to jurors the nature of unseen injuries and the pain, disabilities, and loss of enjoyment that stem from them.

Use visual references. Of the five human senses, sight is dominant. It is our primary survival sense, the first we use to perceive the world. We use it to inform our other senses. Sight helps us choose what we will taste when, for example, we read a menu or examine vegetables and meats before buying them. Consider product advertisements, posters for concerts and music CDs, and packaging for perfume. We look at things to decide if we want to touch them: Plush toys and wet concrete invite us to touch; dead animals and broken glass don't.

We rely on sight to tell us whether something is desirable or undesirable, safe or dangerous. Jurors rely heavily on sight to determine whether something is real or imaginary.

Convincing jurors of something they cannot see can be a challenge but it is not impossible. Any time you speak, look for a way to add a visual reference. Companies use this tactic in their marketing. For example, Prudential Life Insurance Co. adopted the Rock of Gibraltar over 100 years ago to connect the abstract concept of life insurance to something solid and real--something most people would recognize. (4)

Medical illustrations and three-dimensional models are a good start. You can use them to show, rather than merely explain, an internal malfunction and how it affects relevant neurological and biological systems. You can show neurological injury by "damaging" an illustration with black markers. You can cut out parts and leave gaping holes in your illustrations. You can break your models and leave the pieces on the plaintiff's table in plain view of the jury.

With duct tape, you can "mend" the model and show how invisible injuries never completely heal. While explaining a closed-head injury, you might "accidentally" knock a durable skull model off the plaintiff's table and then pick it up, give it a cursory glance while setting it back on the table, and comment that everything seems OK. Repeated well-placed demonstrations can help make your point.

Create relationships with jurors by highlighting personal connections. People usually do not feel sad when they read that 1,368,000 people were diagnosed with cancer in 2004, (5) but they do when they learn that their next-door neighbor was just diagnosed with breast cancer. Why? Relationship.

Relationships create involvement, understanding, and compassion. Likewise, involvement, understanding, and compassion create relationships. Forge relationships with jurors, whether with you or your clients. You can do this effectively during voir dire by asking questions that get jurors involved.

It is difficult for jurors to relate to something they have not experienced. Help them understand the client's pain or loss by tying it to common experiences: A plaintiff with chronic fatigue syndrome may no longer be able to enjoy her grandchildren. A plaintiff with complex regional pain syndrome may not be able to garden or enjoy physical intimacy with her husband. While jurors may not relate to these conditions, they probably will understand what it is like not to be able to enjoy children, hobbies, and intimacy.

I ask potential jurors to think of things they cannot see or measure, but they know are real. Jurors will say things like "love" and "God."

Then I ask if any of them have a headache or a backache. Hands will go up and heads will nod. I ask if their aches can be seen or measured independent of their personal assessments. They will murmur "no" and shake their heads. Twelve jurors just formed a "relationship" with invisible injuries; the invisible is now real.

I next work to strengthen that relationship with compassion. I select the most credible juror with a backache or a headache and ask the others if they knew "Mary" had a backache. Could they see Mary's backache? Could they measure Mary's backache? Do they think Mary is lying to us--not just lying, lying to us?

I am quiet for a while and let that sink in. Then, I ask Mary if she would like some ibuprofen. I'm establishing a relationship with Mary and her fellow jurors based on understanding and compassion. Anything you give the jurors now will be rewarded later, when you ask them to determine compensation for your client.

I continue my relationship-building by asking the jurors if they think. This usually makes them uncomfortable for a moment or two. I don't let this question linger too long because I don't want to lose the relationship I am establishing. (If a juror answers the question, I waited too long.)

I chuckle and say, of course they do. They think all the time. Then I ask, Can they see their thoughts? Can they measure them? They shake their heads. I ask, "Since your thoughts cannot be seen or measured, do you think thoughts don't exist. That always get a chuckle--they are laughing at the absurdity of that notion. (This is also my first preemptive strike against the defense, which will have to make such an argument about my client's unseen injuries.)

I ask if they have ever had a troubling thought. Have they ever worried about a son or daughter, a job or money? I explain that these thoughts often lead to anguish, stress, and pain. The unseeable, unmeasurable thought generates pain. Thoughts can cause us to stay awake all night, pace the floor, cry, and be haunted by loneliness, depression, and fear.

I let that sink in. I am preparing them for the second preemptive strike.

Use preemptive strikes. After I have helped the jurors "see" that invisible things can be real, I explain that the defense may try to convince them that my client's injury is merely psychogenic, or all in his or her head. It's just thoughts, the defense lawyer may say.

Then I admit that that is a possibility but add, "I know my client a lot better than I know Mary, who just told us she has a backache. Even if the defense lawyer had to prove that Mary's pain is all in her head, I believe Mary's back hurts. I believe Mary." If there are other jurors who have voiced pain complaints, I mention them by name also.

I tell the jurors that opposing counsel may know that Mary's back hurts and have compassion for her, but the defense's job is to prove Mary's pain does not exist. (Yes, I substitute Mary for my client for greater effect.)

Then I tell the jurors I'm glad I don't have the defense lawyer's job.

Winning just compensation for plaintiffs is our responsibility. We must work openly and compassionately with our clients to help them identify and acknowledge their injuries. Then, by using visual references, creating relationships, and using preemptive strikes, we can convince jurors that even invisible pain is real.

Notes

(1.) Many states do not provide for damages for psychological disorders, such as post-traumatic stress disorder, unless a physical injury contributes to the continuation of the psychological trauma. See, e.g., George v. Southwire Co., 458 S.E.2d 362 (Ga. Ct. App. 1995); Abernathy v. City of Albany, 495 S.E.2d 13 (Ga. 1998); Bobb County v. Short, 518 S.E.2d 484 (Ga. Ct. App. 1999).

(2.) Impairment of the capacity to enjoy life, resulting from a physical injury, is a proper element of damages. Valdosta Housing Auth. v. Finnessee, 287 S.E.2d 569, 570 (Ga. Ct. App. 1981) ; Underwood v. Atlanta & West Point Ry., 124 S.E.2d 758 (Ga. Ct. App. 1962); see also Annotation, Damages: Loss of Enjoyment of Life, 15 A.L.R. 3d 506, 515 (1967).

(3.) See, e.g., fibromyalgia: National Fibromyalgia Association, at www.fmaware.org (last visited Apr. 25, 2005); chronic fatigue syndrome: CFIDS Association of America, at www.cfids.org (last visited Apr. 25, 2005); reflex sympathetic dystrophy: Reflex Sympathetic Dystrophy Syndrome Association, at www.rsds.org (last visited Apr. 25, 2005); complex regional pain syndrome: Beth Israel Medical Center, Department of Pain Medication and Palliative Care, at www.stoppain.org/ pain_medicine/crps.html (last visited Apr. 25, 2005); post-traumatic stress disorder: National Center for PTSD, at www.ncptsd.org (last visited Apr. 25, 2005) and PTSD Alliance, at www. ptsdalliance.org (last visited Apr. 25, 2005).

(4.) HARRY BECKWITH, SELLING THE INVISIBLE: A FIELD GUIDE TO MODERN MARKETING (1997).

(5.) AM. CANCER SOC'Y, CANCER FACTS & FIGURES 2004 (2004), available at www.cancer. org (under "Health Information Seekers," select "Statistics," then "Statistics for 2004") (last visited Apr. 25, 2005).

Tap the ATLA Exchange for Law Reporter resources to help demonstrate invisible injuries

The ATLA Exchange has many resources to help members assess and prepare cases involving a wide variety of invisible injuries: litigation packets, case evaluation kits, court documents, depositions, ATLA Education speaker papers, case abstracts, Law Reporter Court Document Sets, medical literature guides, and more.

For more information, contact the Exchange by phone at [phone] or by fax at [phone], or log on at www.exchange.atla.org.

Connective tissue injuries

Connective Tissue Injury Collection. A collection of cases that have appeared since 1993 in the Law Reporter and the Products Liability Law Reporter involving connective tissue injuries. (No. IC0002)

Psychological injuries and emotional distress 

Alba v. Robb. The plaintiffs' trial briefs, motion in limine, and transcripts of court proceedings in a case alleging that a woman who witnessed her female partner's death following an automobile collision was entitled to receive damages to compensate her for emotional distress. (No. LR-3524)

Bray v. Marathon Corp. The plaintiffs' appellate briefs in a case alleging strict liability and negligence for a defective trash compactor, where a woman suffered emotional trauma from witnessing her coworker's death in the trash compactor. (No. LR-3967)

Carter v. Williams. The plaintiff's appellate brief in a case holding that a victim's sister could recover distress damages despite a provision of the state wrongful death statute barring claims by "heirs." (No. LR-3858)

Inservices v. Aguilera. The court's unpublished opinion in a case holding that a worker who was denied medical treatment by his workers' compensation carrier can sue the carrier for intentional infliction of emotional distress. (No. LR-3831)

McComb v. Wal-Mart Stores, Inc. The plaintiff's memorandum in response to the defendant's motion for judgment notwithstanding the verdict, a new trial, remittitur, or to amend the judgment. The case alleged outrageous conduct, negligence, and intentional infliction of emotional distress when a store accused a man of passing counterfeit money. (No. LR4062)

National Insurance Association v. Sockwell. Appellate briefs in a case holding that an award for mental anguish damages is not subject to strict review on appeal where the plaintiff showed related physical symptoms. (No. LR-3853)

Reflex sympathetic dystrophy

Chesler v. Trinity Industries Transportation, Inc. The plaintiff's complaint, defendant's answer and third-party complaint, and deposition transcripts of the defendant's neurosurgery expert and the plaintiff's liability expert. The case alleged that the plaintiff suffered reflex sympathetic dystrophy resulting from a rear-end collision when a tractor-trailer driver failed to keep a proper lookout and sound an audible warning. (No. LR-3786)

Renquin v. Norseman Trucking. The depositions of two expert witnesses, including defendants' reflex sympathetic dystrophy expert, in a case alleging a truck driver failed to keep a proper lookout. (No. LR-4086).

HOWARD SPIVA practices in Savannah, Georgia.