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Bringing case issues into focus: mock trials and focus groups can sharpen your presentation.

Most lawyers think of focus groups and mock trials as ways to provide a dry run for litigation involving very large dollar amounts. But that's not all they're good for. Scaleddown versions can also help lawyers evaluate and prepare smaller cases. This article gives practical hints on making the most of these tools.

For the purposes of this discussion, focus groups include any presentation--for example, a short version of a trial or the testimony of a particular witness--that is made to a small group of people who give immediate feedback on their impressions of the facts presented.(1)

Mock trials are more extensive adversarial presentations, after which a jury or juries deliberate and decide the issues much as a real jury would.(2) The mock jurors can then be debriefed for their comments and suggestions, just like a focus group.

What can the trial team gain from using focus groups and mock trials?

* An opportunity to explore alternatives. Any decision a lawyer has traditionally been compelled to make by intuition can benefit from data developed in a focus group or mock trial. For example, suppose there is an opportunity to settle with one defendant by a Mary Carter agreement. If real jurors learn of such a settlement, will it affect their decision? This question can be explored in a focus group or mock trial.

Or suppose the partial culpability of the plaintiff is apparent. The lawyer may think that addressing the issue head-on would be the most credible approach. She wants to say that the plaintiff was probably 50 percent responsible for the accident rather than to try to minimize how fast the plaintiff had been driving. However, she would feel more comfortable after checking the reactions of a mock jury.

* A vebicle for preparing and practicing. Even a junior high school play gets a dress rehearsal before the young thespians finally go before a real audience. Yet jury trials involving large sums of money are sometimes presented without a similar level of practice. The focus group and mock trial both allow participants on one side of a case to prepare and practice their roles for the ultimate jury trial.

Ideally, the whole trial team--lawyers, paralegals, secretaries, investigators, and sometimes the parties and key witnesses--should participate. The approach of a deadline helps everyone involved complete their tasks. Both attorneys and witnesses can look fellow citizens in the eye and find out how they will receive this presentation or testimony.

* A tool for evaluation. After working on a case for a year or two, it is easy for lawyers to get too close to it and become distracted by details. Those closest to the case can lose objectivity about its true merits.

Presenting the facts to a focus group or mock trial allows everyone involved--lawyers, witnesses, and clients--to see the case with fresh eyes and recognize its strengths and weaknesses.

On the one hand, suppose a client has said he will never settle for under $500,000 and then sees a focus group and a mock jury quickly reach a finding of no liability. This client is likely to reevaluate his stand.

On the other hand, suppose a lawyer or client who has been intensely concerned about some matter that might reflect negatively on the case sees that jurors find this problem insignificant. A modest settlement offer that was tempting to the client before may now be rejected comfortably.

The Right Case

Which cases benefit most from these techniques? It is hard to imagine one that would not. Even the simplest case has alternative presentation possibilities. Just getting ready for the focus group or mock trial can be helpful. After all, worldclass athletes practice, practice, practice for every contest. Lawyers need to do the same.

The cases that most trouble lawyers usually involve issues or personalities they have never seen tested before a real jury. Perhaps a child is suing his father for reckless driving that caused a severe injury. Cases like this were not legally possible in many jurisdictions until recently, so few lawyers know how jurors will react. Will they feel that it is wrong for a child to sue a parent? Or will they feel that a father's duty not to harm his own child should be held higher than his duty not to harm a stranger?

Participants

Although some experts say that focus groups should not include family, friends, or acquaintances, it is not essential to exclude them. However, outsiders usually lend more objectivity to the group's final comments.

If participants come entirely from an employment agency or similar source, the feedback will be more objective, but not necessarily more insightful. The purpose of these groups is to help the lawyer recognize all the facets of a case. Sometimes the best observations come from strangers, sometimes from those involved in the litigation.

Obviously, a mock jury should resemble the real jury as closely as possible. A temporary employment agency can recruit prospects with a mix of educational and occupational backgrounds. Asking for 15 jurors should ensure that 12 suitable ones will show up. Specifying the age, race, sex, education, and occupation needed is a good idea.

One sound approach is to make the presentation to the whole group and then split it into two groups to deliberate separately. With good information about the probable composition of the real jury, this technique is reasonably sure to achieve a proper mix for at least one of the groups. The remaining group may be less representative, but its comments can still be very useful.

Mock jurors should be given an initial questionnaire similar to the one prospective jurors would fill out. Having a record of the key background data about each juror facilitates analyzing the verdicts. Follow-up letters or phone calls can be used to correlate the verdicts with the questionnaire results.

Timing

Focus groups are particularly helpful during the early stages of a case, as soon as the crucial facts and alternatives are known. Focus groups can provide valuable insights about where a case may be most profitably filed, what theories of liability are most likely to succeed, and which defendants are most likely to be held liable.

A focus group can also be useful after suit has been filed and initial discovery has been accomplished. The group's comments can help the trial team determine the most appealing arguments or the best way to handle evidentiary difficulties that arise.

Conducting a focus group can be thought of as a form of brainstorming. It is most useful early, while there are still a lot of available options about further case development.

In contrast, mock trials are best when preparation is advanced and the goal

is to evaluate the evidence and arguments that will actually be presented at trial. The more specific the evidence, the more accurate the results. It is important to use the real trial exhibits, the real arguments, and the actual charge that will be submitted by the court.

However, it is also important to hold the mock trial far enough in advance of the trial to allow for adjustments. That way, if the results are not favorable, it will not be too late to amend pleadings, hire new experts, conduct additional discovery, or take other steps. The optimum time will vary case by case but will usually not be later than 90 days before the date of the trial.

Location

Holding the exercise in the lawyer's office has advantages, though some experts say not to do that. The office's convenience, cost, and confidentiality are a plus. The location is good for the trial team, and all the case materials are close at hand. There is no extra cost for using the premises, and it should be easy to prevent eavesdropping.

One drawback is that participants may not be as candid as they would be in a neutral setting. They tend to want to please their hosts and tell them what they want to hear. But for the trial team, it is most important that participants are candid. In a mock trial it is better not to let them know who is putting on the presentation, the plaintiff or the defendant. It may be easier to conceal this when the trial is held at a neutral site.

Getting out of the office also helps the trial team avoid the distractions of the office environment and concentrate on the case as they would at trial. In addition, everyone gets some practice in the logistics of transporting the case materials. This can be a valuable part of the "dress rehearsal," especially where the volume of trial materials is substantial or the exhibits are unwieldy. Of course, a neutral location lacks the home office's advantages in cost, convenience, and confidentiality.

It is a great advantage to be able to videotape the deliberations of a mock jury, ideally without the equipment's being too intrusive. Taping inconspicuously may be more difficult at a neutral site.

Whenever an outside location is chosen, special attention must be given to the surroundings so that the nature of the proceedings will not be leaked to the opposition.

Choice of Material

The expression "Garbage in, garbage out" applies to both focus groups and mock trials. The more accurate and complete the information presented, the more useful the feedback will be.

* Focus groups. Usually a presentation to a focus group will be brief and made by one person. Both the strengths and the weaknesses of the case must be presented. All too often lawyers spend a great deal of time thinking about the strong points of their cases and how to present them, but fail to give adequate thought to the weaknesses and how the other side will exploit them. Both focus groups and mock trials force the lawyer to think about the other side's strategy.

These presentations also compel the lawyer to explain complex facts in a relatively short time. This is excellent practice for boiling a case down to its essence.

Final trial exhibits usually will not be ready at the focus group stage. But

charts, photographs, or other graphics can help the group grasp the essentials of the case rapidly and accurately. If graphic designers are enlisted at this stage, they will be able to experiment to find the most suitable trial graphics.

* Mock trials. The two hardest things about putting on a good mock trial are (1) compressing the facts of the case to their essentials and (2) presenting the other side's case with enough insight and intensity to test its strength. Trimming an expert witness's testimony to 10 minutes forces both lawyer and expert to focus on the most crucial issues.

Obviously, if the mock trial is limited to two to three hours, only a few witnesses can be presented. The witness selection process will prompt the trial team to evaluate what testimony is likely to be pivotal in the real trial.

One good way to ensure that the opposing side is adequately presented is to have the lawyer most familiar with the case play the opposition's role. It is a real challenge for an advocate to defend a case he or she has been planning to prosecute for months or even years. Though difficult, it can be beneficial, enabling the advocate to identify over-looked case weaknesses.

The actual charge to be used at the trial should be ready by the time the mock trial is presented. If the charge is long, it may be necessary to abbreviate it for the mock trial. All jurors should be given a copy of the charge at the beginning of the case so they can orient themselves to the questions they will be asked during deliberations.

Videotapes of the deliberations will show the trial team how desperately jurors struggle with the language of the court's charge and how they deal with terms like "proximate cause." Watching this struggle often helps the lawyer formulate comments for opening statement or summation that will help the real jury to understand the issues they are asked to decide.

It is just as important to test the effectiveness of trial exhibits as it is to test the arguments and witnesses. Does the jury readily grasp what the exhibits are designed to communicate? During deliberations, do some jurors use the exhibits to persuade others to their point of view?

To begin the mock trial, the lawyer should do a short voir dire even though there is no plan to strike any panel members. This is a good opportunity to test questions for the real jury panel. It gives the lawyer practice in getting ready for this part of the trial and helps give the proceedings an authentic feel.

Opening statements can be used to give the mock jurors the factual context for the limited testimony they will hear. It may be necessary to allow both sides more latitude than usual so they can present enough information in a short time.

The plaintiff can be questioned and cross-examined before the mock jury. This will provide insights into how real jurors will receive the testimony. It will also test how effective the plaintiff is in direct examination and how he or she is likely to withstand the rigors of cross-examination. If further preparation and practice are necessary, the mock trial will make it painfully clear.

Another alternative is to excerpt the plaintiff's testimony from a videotaped deposition or interview. This is particularly beneficial where the same set of facts must be presented before several mock juries.

Getting accurate testimony that forcefully presents the opposite party's point of view is one of the most difficult problems of mock trial presentation. If the depositions of the adverse parties have been videotaped, excerpts are probably the best way to convey the other side's position.

If the depositions have not been taped, someone must play the opposition and testify as convincingly as possible. Roleplayers must be given a "script" or checklist of facts so they will testify correctly.

Before mock jurors deliberate, they should hear short summations for both plaintiff and defendant. This is a good opportunity to test the arguments planned for trial. The lawyers should bring together the witness testimony, the trial exhibits, and the court's charge so jurors can deliberate effectively.

Perhaps the case is to be presented to two or more mock juries in order to zero in on the probable outcome. If so, it may be useful to videotape the first presentation. Then a paralegal, investigator, or independent contractor can recruit other mock juries to watch the videotape and record their reactions. Specific trial alternatives can be incorporated into different versions of the videotape to test the different reactions.

Feedback

One way to get responses is simply to present the material and then ask for group reactions. Another way is to give individual exit questionnaires to all participants or discuss the case with them one by one. A combination of these techniques can be used to make sure each member's true reactions are obtained.

The jury deliberation process can be watched through a one-way mirror or recorded on videotape for later study. Sometimes it will be useful to do both. It may be impractical to conceal the videotape apparatus during jury deliberations. Fortunately, the presence of the video camera and recorder (turned on before the jury comes into the room) seems to have almost no impact on the deliberative process.

After the mock jurors have returned their verdict, it is useful to assemble them and hear their comments as a group. This will be much like the commentary delivered by focus group members and may well be the most valuable feedback. The facts are fresh in their minds and they may be eager to "speak their piece" after having listened for several hours. It is interesting to note the discrepancies between the reasons they give for their answers and those that they gave during deliberations.

Questionnaires can also prove helpful. Some jurors will privately write down comments that they are hesitant to say out loud. Questionnaires cna be filled out on the spot or taken home and returned by mail. It is wise to provide a self-addressed, stamped envelope for this purpose.

A juror's voice and manner often communicate more than the written word. Broad, open-ended questions are best in these exit interviews.

Videotaping exit interviews provides an excellent way to memorialize individual jurors' perceptions of the case. These tapes can later be used in preparing for voir dire or responding to thorny issues in the case. Excerpts can also be effective persuasive tools in mediation sessions as well as in video settlement documentaries.

The final step is a follow-up phone call by the lawyer or paralegal to probe a little deeper. Calls should be made within a couple of days of the mock trial. Jurors will have had an opportunity to think things over.

A good indication of the strengths and weaknesses of the presentation is which parts they remember vividly and which parts they have forgotten. Also, because these calls are private, jurors may give feedback they were unwilling to give in any other way.

Repetition

After a mock trial, lawyers invariably think of ways to improve their presentation. Mock jurors often have good suggestions that no one on the trial team thought of. These improvements can be integrated into the case in a second or additional mock trial. But even without significant changes, presentation to a new jury gives the trial team an opportunity to confirm the original assessment.

A repeat mock trial may be particularly useful where the first mock jury returned an evaluation much different than was expected. If a client has expected a damage finding of $500,000, and instead gets a $75,000 award, everyone wonders if the low finding is an aberration. But if the next two mock juries bring in awards of $50,000 and $100,000, participants will realize they need to reevaluate the case or make a significant change in the way it is presented.

Evaluation

What is the best use of the evaluation?

* To sharpen the client's understanding. The client should be warned that the mock jury may come back with an award that is unrealistically high or low. Also, the client needs to realize that the key information sought is what reasons the jury gives for reaching the damage amount, not how big it is.

A very low finding can be unduly discouraging to the client and a very high one can inflate expectations. But for clients who are properly prepared, the experience should materially sharpen their understanding of the process by which their claims will be evaluated. They should become better witnesses and have a better idea of the real value of their case and any problems with it.

* To sharpen the lawyer's focus. One hallmark of a great trial lawyer is the ability to zero in on a case's pivotal issues. Mock trials can show if the focus is on target while there is still time for changes. Mock jurors often say they think the lawyers on both sides spent too much time on obvious points and too little on important issues. This kind of feedback can be worth its weight in gold.

* To persuade the other side. It may be useful to discuss mock trial results in settlement negotiations. If the other side offers $300,000 to settle and three different mock juries have come in with $750,000 or more, rejecting the lowball offer can be easier since you have the independent evaluation of three mock juries as reinforcement.

If jurors' written comments are persuasive, they can be included in the settlement package. If the deliberations have been videotaped, excerpts can be used to show the other side how ordinary people respond to the facts at issue. Of course, the opposition will question whether its side was adequately and objectively presented. Even so, a candid discussion of the results can sometimes be very persuasive.

Hazards

What are the dangers of conducting focus groups and mock trials?

* Accidental discovery by the other side. Particularly in smaller communities, the opponent may find out about the focus group or mock trial. To prevent this, reasonable precautions should be taken to hold the exercise in a private place. Participants should be asked to keep the matter confidential and perhaps to confirm that promise in writing.

Even so, the opponent may learn that the plaintiff is testing the impact of various arguments and theories. This should not be of great concern. More worrisome is the possibility that an opponent might try to discover the specific responses to the alternative arguments and theories.

One case dealing with the discoverability of this kind of activity is Southern Pacific Transportation Co. v. Banales.(3) A workman sued the railroad for a hearingloss injury. The railroad hired a physician to help in conducting a hearing conservation program. As a part of his preparation to testify by videotape deposition, the railroad staged a practice deposition.

The plaintiff's attorneys learned of the practice deposition and requested a copy of the videotape. The railroad objected on the basis that it was privileged as work product and as a witness statement under Texas Rule of Civil Procedure 166b(3)(a) and (c). In defense of its position, the railroad presented the affidavit of its attorney and parts of the physician's deposition. It tendered the videotape to the trial court for review in camera.

Without reviewing the tape, the court ordered the railroad to produce it for discovery. The railroad attorneys appealed the ruling, asserting that the videotape contained their mental impressions, thus making a prima facie showing that the videotape was privileged under the work product doctrine. The court of appeals held that the trial court abused its discretion in failing to review the videotape in camera and in ordering its production.

Other courts have recognized attorneys' work product as privileged. In Sprock v. Peil, the Third Circuit gave "legal strategy, the intended lines of proof, evaluation of the strengths and weaknesses of a case, and inferences drawn from interviews with witnesses" this status.(4) In Banales, the Texas Court of Appeals held that "this type of information is accorded absolute protection because our adversarial system has a serious interest in maintaining the privacy of an attorney's thought processes."(5)

Nevertheless, this same court said that the trial judge should withdraw his order to produce the videotape until after he had reviewed it to determine "whether it contained information tending to mold the witness' testimony, which would not be worthy of protection."

* Juror perceptions. What if your opponent attempts to impeach witnesses with their mock trial participation? In the trial, opposing counsel might ask a witness whether "practice sessions" were conducted before testimony was given in the case. What will the jury think of focus groups and mock trials? Mock trial sessions are similar to traditional witness preparation sessions in the lawyer's office before trial. But they might seem quite different to a jury.

It may be appropriate to file a motion in limine to exclude any discussion of practice sessions or mock trials during the trial. Rule 403 of the Federal Rules of Evidence provides a basis for this exclusion because the discussion of these activities would tend to confuse the issues at the real trial and would likely lengthen it unnecessarily.

* Overestimation of the reliability of the results. Some mock juries get caught up in the trial process and conduct their deliberations with great intensity. It is very easy to focus on their results, positive or negative, instead of the reasoning behind the results. This can sometimes be misleading, particularly when there is only one mock trial.

Even where the presentation has been made three or four times and the results are fairly consistent, it is important to recognize that the real jury may arrive at a significantly different result.

Valuable Tools

Focus groups and mock trials can be excellent tools for preparing and evaluating virtually any case. They advance the deadline for case organization and development and permit a safe and inexpensive exploration of alternative trial strategies.

These tools also present an opportunity for practice by the trial attorney and other members of the team. Focus groups and mock trials can help educate the client on the nature of the adversarial process, both limitations and possibilities. These exercises can provide a useful and cost-effective way to prepare and evaluate any case.

Sample Exit Questions for Mock Jurors

1. After you heard the opening statements by the attorneys for both sides, but before you heard any testimony by witnesses or saw any documents, did you form a tentative opinion that one side or the other should win the case?

2. How close was that opinion to the ultimate opinion you reached after hearing all the evidence?

3. After hearing the testimony of Mr. Plaintiff, the Volvo driver, and then Mr. Defendant, the Cadillac driver, did you form a distinct impression about which one was responsible for the accident?

4. Having heard that testimony alone, did you give any consideration to the fact that the accident might have been unavoidable?

5. After hearing the accident reconstruction expert, Mr. Plaintiff's expert, did you have a firmer feeling about who was responsible for the accident or a clearer understanding of how it occurred?

6. Did you have any difficulty in understanding his analysis?

7. After hearing the testimony of Ms. Plaintiff, the accident victim, did you feel that the damages sustained were substantial?

8. Did you feel that she was attempting to exaggerate her damages or that she had not made a bona fide effort to return to employment?

9. Did you feel sympathetic to her?

10. Did you feel that she was in any way responsible for the accident?

11. Did you feel that if the accident were to any extent the fault of her driver, you should reduce the amount of her damages because of that?

12. Did you have any negative feelings about her because she was in an extensive romantic relationship with her driver and was not married to him?

13. How did you feel about the testimony of Gayle Witness, who felt so strongly that Mr. Defendant reeked of the smell of alcohol?

14. Did you think she might be mistaken about the odor of alcohol she said she smelled on his breath?

15. Did you think that he might have smelled of alcohol to the extent she indicated even though he had had only one or two drinks?

16. Did you feel that the odor probably indicated that he had had many drinks and that that was the real explanation for the accident?

17. Did you feel that Officer Smith might have been mistaken about the measurements and notations he made at the accident scene?

18. How did you feel about the fact that Officer Smith did not make any notation about the smell of alcohol about Mr. Defendant?

19. Did you feel that that probably meant that Mr. Defendant was in fact being truthful when he said that he had nothing to drink or that Officer Smith had simply overlooked the alcohol odor?

20. How did you feel about the amount of money asked for by the plaintiff's

attorney?

21. Did you expect him to request a good deal more than he had any real hope of getting?

22. Did you feel that he had exaggerated or blown the damages out of proportion?

23. Assuming the evidence was along similar lines, if you had been a real juror in this case, would you have voted to award the amount you awarded during this mock trial?

24. How did you feel about the contention of the defense attorney that the accident was to some extent the fault of Ms. Plaintiff, the passenger?

25. How did you feel about his contention that the faultnd disc injuries, the attorney must be familiar with the basic anatomy of the spine. The spinal column is divided into five parts: seven cervical vertebrae, twelve thoracic vertebrae, five lumbar vertebrae, the sacrum, and the coccyx. (The last two are composed of several vertebrae fused together to form solid bone.) Each vertebra is described by an initial and a number, such as C1 or T1 or L1.

An intervertebral disc is a structure located between two vertebrae. It functions as a shock absorber and is kept in place by vertebral ligaments known as the anterior longitudinal ligament and the posterior longitudinal ligament. The disc has an outer surface called the annulus fibrosus and an internal jellylike material known as the nucleus pulposus.

Thirty-one pairs of nerves are attached to the spinal cord: eight cervical, twelve thoracic, five lumbar, and five sacral pairs, and one coccygeal pair. Because the C1 nerve root exits above the C1 vertebra and the C8 root exits below the C7 vertebra, there are eight cervical nerve roots, but only seven vertebrae. Each cervical nerve root supplies impulses to a specific area of the body along a path that is known as a dermatome.

There are two common disc abnormalities: bulges and herniations. A bulge occurs when the nucleus pushes the annulus beyond its normal boundaries toward a nerve root without tearing the annulus. A herniation occurs when the nucleus physically escapes through a tear or break in the annulus.(5)

Most herniated discs occur in two areas: in the lower cervical spine at C5-C6, C6-C7, or, less often, C4-C5; or in the lower lumbar spine at L4-L5 or L5-S1. The neurological symptoms will correspond to the level of herniation. Most disc abnormalities are visible with magnetic resonance imaging (MRI), but computed tomography (CT) studies often fail to identify obvious cases of disc herniation.(6)

With advancing age, the disc responds to the day-to-day stresses of body movement by exhibiting natural degenerative changes. For example, the annulus can weaken or the nucleus can dry up. X-rays may show signs of the gradual development of these changes, revealing narrowing of the disc space or forming of bony spurs known as osteophytes. In some patients, disc bulges and herniations may ultimately result over time without trauma.

The location of the bulge or herniation will influence the type of pain and symptoms experienced, if any. Not all degenerative changes result in discomfort. Symptoms may not be exhibited unless the disc bulges or herniates through the posterior longitudinal ligament, since nerve root pressure is most likely to occur there. Many people can work and engage in recreational activities without experiencing symptoms.(7)

Neurological Symptoms

When a cervical or lumbar disc bulges or herniates, the nerves that exit from the spine in those regions may be affected. Nerve root irritation or compression will trigger neurological symptoms. The cause of the compression, as well as the types of symptoms and when they occur, will vary. The intensity of the pain may become more severe and the episodes more frequent over time.

The standard tests for the diagnosis of nerve root disturbances are electromyography (EMG) and nerve conduction studies (NCS). A negative EMG does not rule out a nerve injury, however.(8) The straight-leg-raising test (Lasegue's sign) is the most widely used test to diagnose a herniated lumbar disc. Some authors report that the test is positive in 83 percent of patients with an L4 or L5 disc injury.(9)

With the advent of MRI, the diagnosis of a herniated disc can be made with increasing accuracy.(10) However, due to the cost of MRI, many patients who complain of neurological symptoms are first sent for NCS and EMG.

It is easiest to identify the cause of symptoms when they occur along a specific dermatome because each dermatome is associated with a particular nerve root. However, "the fact that the symptoms do not follow a particular dermatome map does not exclude the existence of a symptomatic nerve root."(11) Motor symptoms like muscle weakness, which occur less often than sensory disturbances, are significant clinical signs because they may result from spinal cord compression.

Proving Causation

When a client complains of neck or back pain with radiating pain down the arm or leg--including numbness, tingling, or "pins and needles"--the lawyer must consider the possibility that the pain is the result of a bulging or herniated disc. Since the trauma that the client experienced could have been the event that caused or accelerated the degenerative changes resulting in the disc injury, the patient's medical, work, and social history must be carefully scrutinized.

What evidence is needed to prove causation? This depends on whether the initial X-rays were normal or showed signs of disc degeneration. When they reveal that degeneration was present before the trauma, defense lawyers can be expected to argue that the condition was preexisting and that the trauma played little or no role in producing the chronic pain and neurological symptoms. The plaintiff's lawyer must be prepared to explain how the X-ray findings do not rule out a causal relationship between the traumatic injury and the symptoms.

The treating physician's testimony can successfully counter the defense argument if the physician clearly explains the natural progression of disc degeneration. In some cases, the medical history will show that the plaintiff never had symptoms before the trauma, despite the degenerative changes.

The medical literature confirms that degenerative changes of the spine are unrelated to neurological symptoms.(12) It is generally recognized that "neither the radiologist nor the surgeon can determine by inspection whether the perceived abnormalities (bulging or herniated disc, bony spur, narrow canal) are symptomatic or asymptomatic."(13)

Many of the degenerative changes identifiable on X-rays appear in patients who have no history of neck or back pain.(14) For example, if osteophytes are present, it is critical to locate them because they will not result in nerve root compression when they form in certain locations. In those cases, they will not produce neurological symptoms.

In one study, 160 patients (20 men and 20 women in each decade between 30 and 70 years) without any history of cervical pain had X-rays taken of their

necks.(15) The researchers concluded that, while degenerative changes increased with age, the incidence and degree of neck pain and other symptoms could not be predicted soley from the radiological findings.

In another study, MRI films of asymptomatic patients indicated that a large percentage had evidence of normal degenerative changes--disc space narrowing, disc protrusion, osteophyte formation, and spinal cord compression. These changes were tolerated by patients ranging from 45 to 82 years old without producing any symptoms.(16)

These studies may help convince jurors that defense lawyers and their experts have no medically valid basis for claiming that the plaintiff's pain must have started before the trauma or would have eventually started after the trauma because of the preexisting disc degeneration. The client's treating physician should confirm that many people with similar X-ray findings never have neck or back pain. Even if the plaintiff had pain before the trauma, the physician can cite studies that recognize, for example, that back pain is intermittent and resolves with bed rest.(17)

The ideal case for proving causation involves a plaintiff in prior good health who has never had neck or back problems, who is admitted to the emergency room with complaints of pain, and who develops tingling, weakness, and numbness soon after the trauma. Initial X-rays reveal that the disc spaces are well maintained and there is no evidence of osteophytes. Later X-rays and MRI films reveal degenerative changes in the spine. The treating physician should be able to establish the causal connection between the trauma, the advancing disc degeneration, and the resulting disc injury.(18)

In many cases, however, the patient does not have neurological symptoms at the time of the trauma or soon after, and X-rays may show previous degneeration in the spine. In these cases, the plaintiff's pretrauma medical history and records should be carefully reviewed. To help prove that the injury caused the neurological symptoms, the attorney should note the absence of any neck or back problems before the trauma.

The client should list all physical, social, and recreational activities that he or she routinely participated in without pain or limitation before the trauma. This will help establish that although the client has X-ray findings that indicate disc degeneration, there were no symptoms before the trauma.

If the client can document that the pain started after the trauma and the treating physician can confirm that the pain patterns are consistent with a disc injury, the physician should be able to testify, based on reasonable medical probability, that the trauma accelerated the degenerative process and resulted in disc bulging or herniation.

Lawyers should understand that the clinical findings reported immediately after the trauma may not provide clear evidence of a disc injury. Herniation or bulging does not typically occur upon impact. Clinical evidence of a disc injury often appears months or years later because discs generally degenerate over time, delaying the onset of symptoms.(19)

Similarly, disc herniation can cause prolonged localized pain in the neck or back without immediately producing neurological symptoms along a dermatome. The localized pain may occur as the annulus weakens and the nucleus dries up over time. Eventually, a bulge or herniation may develop and result in nerve root compression. This process can be accelerated due to the traumatic event.

In one study, 146 patients who had sustained neck injuries with no radiological evidence of degenerative changes at the time of injury were evaluated five years later.(20) Some had developed posttraumatic changes, such as disc narrowing and osteophyte formation. The incidence of degenerative changes in trauma patients was higher than in other patients, suggesting that

the trauma was a factor in causing and accelerating disc complications. Also, patients who experienced radiating pain or numbness had a poor prognosis for complete recovery.

Clients may have preexisting conditions other than degenerative disc disease, such as spondylolysis or spondylolisthesis, which are structural abnormalities of the spine.(21) People with these conditions can often work or engage in recreational activities without pain, and many remain active without symptoms or restrictions.(22)

The standard defense argument is that preexisting conditions, whether degenerative or structural, always cause neck and back pain and nerve root irritation and result in a poor prognosis. Adjusters, defense lawyers, and jurors should be reminded that the medical literature says otherwise:

Spondylolysis and spondylolisthesis are common conditions in adolescents and adults. While they may produce back pain, the majority of patients with these conditions are asymptomatic. Careful judgment should be exercised in the adult with no prior history of back pain who is found to have either a spondylolysis or spondylolisthesis. Under such circumstances, the deformity is probably not the cause for the patient's pain and other causes should be sought.(23)

The significance of these structural conditions is that they can lead to disc degeneration. Patients with spondylolysis are also more susceptible to hyperextension soft-tissue injuries because the limits of elasticity are reached sooner.(24)

When a client has one of these structural conditions, the medical history must be scrutinized to determine whether the client experienced symptoms before the trauma. In patients with no history of neck or back pain, the pain and disc complications that have developed since the injury cannot be automatically related to these structural defects:

The relationship between congenital and developmental structural abnormalities of the spine to the disc degeneration is poorly understood. Too often, fallacious reasoning has created misunderstandings in this field. A patient with back pain shows a structural abnormality on his X-ray and, therefore, it is assumed that this abnormality is the cause of his pain.... Relating one group of abnormalities such as the congenital structural changes to a second group of abnormalities, such as disc degeneration, either or both of which may be asymptomatic, becomes rather difficult.(25)

Some of the peripheral nerves in the arms are susceptible to compression in areas other than the cervical spine. Neural or vascular entrapment at the thoracic outlet can produce radicular symptoms.(26) Similarly, carpal tunnel syndrome may contribute to pain and numbness in the fingers or hand.(27) These symptoms may also be related to the trauma.

The defense will likely claim that the symptoms are a mixture of various syndromes, one or more of which were not caused by the trauma. The attorney should ask the treating physician to distinguish the symptoms of cervical origin from those caused by other compressive syndromes and to explain how the traumatic event was responsible for all the patient's injuries. In cases where it is difficult for the physician to distinguish the causes of the symptoms, all may be causally related to the traumatic event if the physician can establish that the anatomical structures responsible for compressing the nerves and producing the symptoms were injured.(28)

Trial Tips

Direct examination of the treating physician. The lawyer must meticulously

prepare this physician for trial. During direct examination, the physician should explain the clinical findings the defense attorney is likely to raise during cross-examination. For example, the physician should explain why the radiologist's report of preexisting disc degeneration does not rule out a causal connection between the trauma and the client's chronic pain and neurological symptoms.

Also, the X-ray films and MRI scans should be shown to the jury and all findings discussed. If this is not done, the defense expert will probably discuss them, and jurors may conclude that the plaintiff had something to hide.

The attorney should also ask the treating physician whether the patient shows a definite pattern of sensory loss and, if so, whether the pattern corresponds to the dermatome of the affected nerve root. If the pain does occur along a specific dermatome, causation is easier to prove. If a variation seems to be present, the doctor should explain it.

When conservative measures fail to reduce the patient's symptoms, the physician may recommend surgery. Because the experts may disagree about whether the patient is a candidate for surgery, the treating physician should be prepared to explain why he or she believes that surgery is likely to succeed.

The physician should also point out that people tolerate pain differently, present with different clinical findings, heal differently, and engage in different levels of physical activity. Because of this, conservative treatment fails to alleviate some patients' pain. According to one estimate, about 20 percent of patients with a firm diagnosis of a disc abnormality will ultimately require surgery.(29)

Cross-examination of the defense expert. Although some defense experts will agree that the plaintiff may have sustained a cervical or lumbar strain as a result of a traumatic event, most will conclude that the plaintiff should have fully recovered within six weeks.(30) According to many experts, complaints of chronic pain and long-term symptoms should be attributed to a preexisting degenerative condition of the spine or disc.(31) Studies that confirm that degenerative changes often do not produce symptoms may be used to impeach these experts.

To establish credibility with the jury, most defense experts will claim to have reviewed all the films, test results, and medical records in the case. An effective cross-examination will force the expert to acknowledge all the findings in the record favorable to the plaintiff. This will leave the jurors with the impression that the expert overlooked many important clinical facts or arbitrarily chose to rely on only certain findings in forming an opinion. The plaintiff's lawyer must make the jury understand that most defense experts reach their opinions after only one brief examination of the plaintiff and that they were paid by the defense for the sole purpose of giving an opinion in court.

Jury instructions. When expert testimony establishes the causal relationship between the trauma and the disc injury, the lawyer should ask the judge to give detailed jury instructions on aggravation of preexisting conditions. This is especially important when the defense is relying on preexisting degenerative or structural conditions to convince the jury to deny compensation to the victim.

It is easier to persuade jurors to award damages for the disc injury when the judge explains that the defendant must take the victim as he or she is, and that the law allows recovery for aggravation of a preexisting condition. Even assuming that jurors believe the plaintiff would have eventually developed neck or back pain due to a preexisting condition, they may still award damages for the increased pain and the longer time period that the plaintiff suffered as a result of the trauma.

Settlement Issues

The lawyer should not be too quick to settle what appears to be a routine neck or back injury case. First, the lawyer should carefully interview the client to confirm that he or she has resumed all normal activity and has no localized neck or back pain and no neurological symptoms.

If symptoms persist, the lawyer should consider postponing a settlement, even if the treating physician discharges the patient. The physician, who initially may have been reluctant to order tests to confirm disc involvement, will be more likely to consider this option if the patient continues to have pain or develops neurological symptoms.

What is the best course to take when a client with continuing symptoms insists that the case be settled? The lawyer should send a letter explaining that the client will be unable to recover damages for new symptoms or problems that arise after a release is signed, even if the problems are causally related to the trauma. The letter should refer particularly to disc injuries and explain that they may not trigger clinical symptoms or become apparent with diagnostic testing until months or years after the initial trauma was experienced.

Notes

(1)See generally Randolph W. Evans, Some Observations on Whiplash Injuries, 10 NEUROLOGIC CLINICS 975-997 (1992); Ian Mac-Nab, Acceleration Extension Injuries of the Cervical Spine, in THE SPINE 647 (Richard H. Rothman & Frederick A. Simeone eds., 2d ed. 1982).

(2)The term "trauma" is used generically in this article to refer to any circumstance where a claim may be asserted against a defendant for engaging in negligent acts or omissions that resulted in personal injuries to the plaintiff.

(3)Richard H. Rothman & Frederick A. Simeone, Lumbar Disc Disease, in THE SPINE 444 (Richard H. Rothman & Frederick A. Simeone eds., 2d ed. 1982).

(4)See Ken Yong-Hing & William H. Kirkaldy-Willis, The Pathophysiology of Degenerative Disease of the Lumbar Spine, 14 ORTHOPEDIC CLINICS N. AM. 491, 494 (1983).

(5)Terminology is often a problem in disc cases because health care professionals use different terms to describe conditions or define common terms differently. Other terms for disc complications include "ruptured disc," "slipped disc," "protruding disc," and "degenerative disc disease."

(6)See Adam E. Flanders et al., Acute Cervical Spine Trauma: Correlation of MR Imaging Findings with Degree of Neurologic Deficit, 177 RADIOLOGY 25-33 (1990) (concluding that CT studies failed to identify 40 percent of disc herniation cases demonstrated with MRI).

(7)Z.B. Friedenberg & W.T. Miller, Degenerative Disc Disease of the Cervical Spine: A Comparative Study of Asymptomatic and Symptomatic Patients, 45A J. BONE JOINT SURGERY 1171 (1963).

(8)See Scott Haldeman, The Electrodiagnostic Evaluation of Nerve Root Function, 9 SPINE 42-48 (1984).

(9)Mary-Louise Hlavin & Russell W. Hardy, Jr., Clinical Diagnosis of Herniated Lumbar Disc, in RUSSELL W. HARDY, JR., LUMBAR DISC DISEASE 17, 20-24 (2d ed. 1993).

(10)See Stephen J. Davis et al., Cervical Spine Hyperextension Injuries: MR Findings, 180 RADIOLOGY 245-51 (1991).

(11)John G. Heller, The Syndromes of Degenerative Cervical Disease, 23 ORTHOPEDIC CLINICS N. AM. 381, 384 (1992).

(12)See Louis M. Teresi et al., Asymptomatic Degenerative Disk Disease and Spondylosis of the Cervical Spine: MR Imaging, 164 RADIOLOGY 83-88 (1987).

(13)Id. at 85. See also Heller, supra note 11, at 394.

(14)Jeffrey S. Ross et al., Imaging of the Lumbar Spine, in HARDY, supra note 9, at 35.

(15)See Friedenberg & Miller, supra note 7, at 1171.

(16)See Teresi, supra note 12, at 83. See also I.J. Lehto et al., Age-Related MRI Changes at 0.1 T in Cervical Discs in Asymptomatic Subjects, 36 NEURORADIOLOGY 49-53 (1994).

(17)See Susan E. Stephens & Gordon R. Bell, Natural History and Epidemiology of Lumbar Disc Degeneration, in HARDY, supra note 9, at 13, 14.

(18)For a case report confirming the causal connection between an automobile collision and a disc injury, see William H. Harris et al., Traumatic Disruption of Cervical Intervertebral Disc from Hyperextension Injury, 60 CLINICAL ORTHOPAEDICS & RELATED RES. 163-67 (1968).

(19)Davis, supra note 10, at 250.

(20)Mason Hohl, Soft-Tissue Injuries of the Neck in Automobile Accidents, 56A J. BONE JOINT SURGERY 1675-1681 (1974) ("This study also corroborated the well-known fact that intervertebral-disc degeneration often occurs without associated clinical symptoms.").

(21)See Gordon R. Bell, Spondylolisthesis, in HARDY, supra note 9, at 209.

(22)See Bruce E. Frederickson et al., The Natural History of Spondylolysis and Spondylolisthesis, 66A J. BONE JOINT SURGERY 699-707 (1984).

(23)Bell, supra note 21, at 222.

(24)Davis, supra note 10, at 250.

(25)Rothman & Simeone, supra note 3, at 475.

(26)Thoracic outlet syndrome occurs when the nerves of the brachial plexus are compressed in the region of the thoracic outlet, which includes the clavicle and the first rib. See generally Symposium: Thoracic Outlet Syndrome, 207 CLINICAL ORTHOPAEDICS & RELATED RES. 2-36 (1986).

(27)Carpal tunnel syndrome occurs when the nerves passing through an opening in the wrist called the carpal tunnel are compressed. Patients with numbness or tingling in the fingers must be suspected as having the condition. See generally George S. Phalen, The Carpal-Tunnel Syndrome, 83 CLINICAL ORTHOPAEDICS & RELATED RES. 29-40 (1972). See also Mary A. Guyonhy are Frank Roane, singing 'The Hills of Ixopo' and 'Cry, the Beloved Country', and Todd Duncan, again, singing 'Thousands of Miles' and the title song. Until Apartheid is totally removed from South Africa, this musical play will unfortunately be timely.

The current Broadway smash revival of Guys and Dolls makes one long to hear the original 1950 cast album, and MCA timed its CD release perfectly (10301, 42 minutes). The original paperdoll logo invites you to open one of the brashest and funniest of all musical comedy albums, long regarded as a perfect recording of a perfect score for a perfect evening's entertainment. The only thing that's missing is the perfect book, and I suspect we'll hear a bit more of that on the new RCA recording. Needless to say, everyone on this recording is definitive, but some more than others--Stubby Kaye, for one, is nearly irreplaceable. The sound may be tinny, but at least you will hear the original George Bassman-Ted Royal arrangements. Hear! Hear! Get this recording if for

whatever outrageous reason you haven't already done so, but be prepared to also buy what surely will be a fabulous revival disc.

Another show that had two cast recordings was Call Me Madam, Irving Berlin's 1950 hit (10521, 48 minutes). Because of a contract with Decca, Ethel Merman was not permitted to appear on RCA's original-cast recording, which substituted Dinah Shore (a perfect Merman sound--alike, don't you think?!) as the Perle Mesta character. The Decca/MCA version has only Ethel, along with Dick Haymes to sing all the male parts, plus the Gordon Jenkins chorus and orchestra. The RCA record (any plans to reissue it?) had everything else: the rest of the cast, the original orchestrations, etc. Still, Ethel Merman was so much the queen of musical comedy that her amazing gusto carries the day, and by the time you're through, you think you've gotten a pretty good taste of what made Call Me Madam a hit. (Actually, the book is quite funny, and still works today despite its Truman-era references, as evidenced by a spirited little NY revival a while ago and by the 1953 film, which reveals Merman at her jauntiest.) The score is first-rate Berlin, and two duets stand out: 'It's A Lovely Day Today' and the spectacular, counterpointed 'You're Just in Love'. A bonus on this disc is the inclusion of the four numbers La Merm recorded from Cole Porter's middling Panama Hattie ten years earlier.

I was surprised how inoffensively likeable Mr Wonderful is (10303, 51 minutes), and, although no one would claim it to be an important score, I couldn't take my ears off it. This 1956 Broadway vehicle for Sammy Davis, Jr has lots of "baby" and "sweetheart" lines in the swinging song cues so redolent of the whole 50s nightclub scene, plus the comic Jack Carter to schmooz you into a happy mood. This may be early Jerry Bock, but his theatrical stamp is already there on such songs as 'Without You I'm Nothing' (an obvious precursor of Cy Coleman/David Zippel's 'You're Nothing Without Me' from City of Angels) as well as on 'I Been Busy'--a quartet, no less. There's also a young Chita Rivera with her flawless diction, and the cheery Pat Marshall. Plus the big hit song 'Too Close for Comfort' for Sammy, whose incisive delivery is something we miss. (I just heard today that Georgia Brown, the original Nancy in Oliver!, died after appearing at a tribute to Davis at London's Drury Lane.)

In 1974, Jerry Herman turned out another highly-charged score for Mack and Mabel (10523, 45 minutes), and producer David Merrick had the good sense to cast Robert Preston and (eventually) Bernadette Peters as Mack Sennett and Mabel Normand. But the show failed, miserably, after being trounced by the critics. I saw it: one problem was that the songs were extremely high-spirited, while the sotry was dark and in the end tragic. Backstage musicals about silent films never seem to succeed, no matter how good their songs (viz. Goldilocks). And some of them are very good here, especially nearly everything P & Joseph C. Honer, Carpal Tunnel Syndrome or Trigger Finger Associated with Neck Injury in Automobile Accidents, 58 ARCHIVES PHYSICAL MED. REHABILITATION 325 (1977).

(28)Evans, supra note 1, at 984-85.

(29)Rothman & Simeone, supra note 3, at 477.

(30)Automobile collision victims who suffer hyperextension-flexion injuries continue to have symptoms that do not resolve even after their claims are settled. See Charles H. Schutt & F. Curtis Dohan, Neck Injury to Women in Auto Accidents, 206 JAMA 2689-92 (1968).

(31)There is little evidence to support the idea that litigation prolongs pain or accelerates symptoms, because many patients continue to have pain after the litigation is settled. See Jerome Schofferman & Shelley Wasserman, Successful Treatment of Low Back Pain and Neck Pain After a Motor Vehicle Accident Despite Litigation, 19 SPINE 1007-1010 (1994); S.H. Norris & I. Watt, The Prognosis of Neck Injuries Resulting from Rear-End Vehicle Collisions, 65B J. BONE JOINT SURGERY 608-11 (1983); M.F. Gargan & G.C. Bannister, Long-Term Prognosis of Soft-Tissue Injuries of the Neck, 72B J. BONE JOINT SURGERY 901 (1990).
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