A Suggested Model for Educating the Jury About Plaintiff's Personal Injuries


Over the years I have read many "how to" articles and authoritative "handbooks" on personal injury proof, including The Anatomy Of A Personal Injury Lawsuit by the ATLA, Jim Brosnahan's very comprehensive Trial Handbook For California Lawyers, Jack Werchick's California Preparation And Trial, Elmer Low and California Continuing Education Of The Bar's California Personal Injury Proof, and of course David Ball on Damages, to name a few. All are excellent, but none approach educating a jury about personal injuries in the following manner, which I offer for consideration.

Repetition and Learning.

Repetition facilitates learning. Repetition causes learning. Educators and neuro-scientists have long recognized this link, although the mechanism is often argued. It is called rote learning. The more times something is repeated, the more likely it is that the listener will remember it. The more times something is repeated to be true, the more likely it is that it will be accepted as true. Whether it is really learning and understanding, or simply acceptance, is immaterial. The simple truth is that the more something is repeated, the more likely it is that it will be believed.

Politicians and their consultants understand and use this principle to manipulate public opinion and perception, sometimes mendaciously. The recent experience of the administration repeatedly linking Saddam Hussein to 911 and al Queda has resulted in a large percentage of the populace believing that Hussein had some involvement when, in fact, he had none. Repetition goes hand in hand with learning. Advertisers successfully use this principle too.

This tool of repetition causing learning is a tool that must be used by the trial lawyer when seeking money compensation for personal injuries. In order to motivate the jury to award maximum compensation it is imperative that the jury understand the relevant anatomy, its value to human function and experience, the injuries involved, and how the injuries prevent or impair function and quality of life. An excellent and effective way of doing this is through repetition. However, cumulative evidence is inadmissible, and simply saying something over and over again is boring. So, how can the plaintiff's lawyer use repetition to educate the jury without running afoul of the Court or losing the jury's interest?

Try this:

Assume you represent a 24-year-old woman who suffered distal tibial and fibular fractures with a posterior tibiotalar ligament tear and resulting osteonecrosis of the talus bone, because the driver of a car ran a red light and hit her while she was walking in a marked crosswalk. She is left with a plate and screws on the fibula, a screw through the distal tibia, and arthritis. She has a normal long life expectancy and already has daily symptoms of stiffness, pain, and swelling at the end of the day.

In opening statement, explain the normal structures of the ankle joint using a medical model and appropriate medical illustrations. Then explain the normal function of the ankle joint and the importance of the various structures to function, including a description of how damage to the structures can impair normal function. Then explain the damage to the structures in your case, and the treatment received. Finally, explain how the damage to the structures have impaired normal function in your case. Be brief, have your visual aids ordered and stored electronically so you can show them at the touch of a button, and preface your comments by the promise that what you are explaining will be testified to by an orthopedic surgeon who is an expert in the diagnosis and treatment of injuries involving bones, joints, muscles, cartilage, tendons and ligaments.

Follow the exact same pattern during your examination of the treating physician. That is:

  • Normal structures/anatomy;
  • Importance of normal structures to normal function and how damage can impair function;
  • The damage to the normal structures in this case;
  • Treatment of the damage to the normal structures in this case;
  • Impairment to normal function because of the damage to the normal structures in this case.

One could argue that the second topic - importance of normal structures to normal function and how damage can impair function - should be split into two separate topics. However, I believe that it should be combined so as to avoid the sustaining of a relevancy objection as to the impairment of function component. If one discussed in opening, or asked the plaintiff's medical expert on direct, how in the abstract damage to structures can impair function, an objection on relevancy or foundational grounds could well be sustained. However, in the more general context of explaining normal structures and normal function the subject of impairment caused by damage is illustrative and relevant to the issue of the normal anatomy and its function.

How it works.

Your explanation in the opening statement of the normal anatomy will be the jury's first exposure to the normal ankle structures. Your subsequent explanation of how the normal anatomy allows normal function, and how damage impairs normal function, is the jury's second exposure to anatomy, and the first to function. Your explanation of the injury and description of the damage to the joint in your case is the third exposure to the anatomy, and during this phase many of the jurors will anticipate how the damage will effect function based on what you've already told and showed them. Your explanation of the surgery and rehabilitation will be the jury's fourth exposure to the anatomy and second to function. Finally, your explanation of the residual consequences of the damage to the structures in your case will be the fifth exposure to anatomy and third to function.

This repetitive exposure to the anatomy and function in each of these phases will result in learning and understanding. And this is only the opening statement. When the physician testifies about these topics, in the same order, the jury will already have some understanding about these things, will anticipate the testimony, and the result of the repetition will be understanding and acceptance.

An example:

The following is an abbreviated example of what to say in opening statement:

1. Structure.

This case involves a very important part of the body - the ankle. [Display an anatomy chart or a medical model and point out the structures as you explain them.] Dr Jones who is an expert orthopedic surgeon, will explain that the ankle joint is comprised of the end of the shin bone called the tibia, the end of a smaller bone next to it called the fibula, and a bone in the foot called the talus. The bump you feel on the inside of your ankle is the end of the tibia bone, and the bump on the outside of the ankle is the end of the smaller fibula bone. There is a material called cartilage between the bones, and ligaments connect the bones to each other and provide important support to the joint. There are nerve endings throughout the area. [Keep this explanation brief and use mostly non-medical terminology, although some words like "distal" should be sprinkled in, which will heighten your credibility when the doctor uses them later.]

2. Importance of normal structures to normal function (and how damage can impair normal function).

Dr. Jones will explain that the ankle joint allows the foot to move up, down, and side to side. He'll use medical terms like plantar flexion and dorsiflexion, which simply means moving the foot down or up relative to the leg. He will talk about articulation which simply means motion between joined parts. Also, he will explain that when standing, walking, or running the body's weight is concentrated on the joint, with most of the weight bearing being between the end of the large bone - the shin bone or tibia - and the talus bone. When walking or running the joint actually experiences far greater forces than the person's weight because of dynamic loading, so it is important that the joint have smooth regular surfaces between the bones, and strong muscles and ligaments to support the joint.

He will tell you that if ligaments are seriously damaged the ankle joint can become weak and unstable, and susceptible to further injury, and if the smooth surfaces between where the bones move relative to one another become damaged and rough, the joint will not function as it should, and it may have clicking and pain and swelling.

3. The damage to the structures in this case.

Dr. Jones will explain that when the car hit Mrs. Plaintiff it caused her to lose balance and twist awkwardly, which put unusual forces on the ankle joint. This caused fractures of the tibia and fibula which you can see in this pre-surgery X-ray. It also caused damage you can't see in the x-ray - a ligament that normally connects the tibia and talus was torn and actually pulled off of the top of the talus bone. The ligament is shown in this medical illustration. This ligament damage caused the ankle to become weak and unstable, and disrupted the normal smooth surface of the top of the talus. This is the area where all the body's weight is concentrated when standing, walking or running.

4. The treatment to the damaged structures in this case.

The damage to the bones and joint structures caused excruciating pain, because there are nerves throughout the area. The damage made it impossible for Mrs. Plaintiff to get up from the street where she had fallen. The ambulance paramedics gave her a shot of morphine at the scene, then put a large splint on the lower leg. At the hospital emergency room she needed more morphine for pain.

The next day a surgery was done to try to fix the damage. Dr. Jones will explain that it involved opening the skin to expose the bones, putting them back into as close to normal position as possible, then attaching a plate with six screws to the side of the fibula, and a large screw into the side of the tibia. (Show the post surgery x-ray.) A large cast was put over the lower leg, and Mrs. Plaintiff was discharged to her home the next day with crutches and instructions to not put any weight on the right foot. This was not the end to her treatment. It was only the beginning.

For the next three months she had a cast, then a splint, then a stocking on the injured ankle for support. She needed a wheelchair, then advanced to a walker, then a cane, for assistance when walking. Getting to her upstairs bedroom and bathroom was impossible so she slept in the downstairs living room on the couch, and had to use a portable commode. She did not attempt to walk at all for the first month because the doctor told her not to, and needed strong pain medication for daily deep throbbing aching pain.

She went to the doctor a number of times, and followed his orders, and eventually attended physical therapy at the hospital, which lasted another six months.

Unfortunately, when she was able to start to put weight on the ankle it caused a sharp deep pain every time she transferred weight onto it. The ankle also was lose and unstable. The doctor did an MRI, then a bone scan, to try to find out what was still wrong. These studies showed that the top of the talus bone was dead because when the ligament was pulled off of it the bone was damaged and the normal blood supply was interrupted. This is called osteonecrosis - bone death. And, instead of a smooth surface between the talus bone and the end of the tibia, it was uneven, which caused pain when weight was concentrated on the joint during standing and walking. Because of this damage another surgery had to be done, to remove the dead bone and try to smooth the surface of the talus. This resulted in a second period of acute disability.

5. Impairment to function because of the damage to the normal structures in this case.

Now, over two years later, Mrs. Plaintiff is left with a permanently abnormal and damaged ankle joint. The tibia and fibula bones have healed, but because of the ligament damage the joint is weak and unstable. Because of the damage to the top part of the talus, there is no longer the smooth articular surface between it and the end of the tibia, so there is always pain towards the end of the day after standing and walking and weight bearing. Remember, all of the body's weight, and more, is concentrated on this joint during standing and walking. There is also daily swelling of the lower leg.

Dr. Jones will explain all of this in greater detail during his testimony. He will explain

  • The normal structures of the ankle joint;
  • How the normal structures allow normal function of the ankle joint and how damage can impair normal function;
  • The damage to the normal structures of the ankle joint caused by the defendant;
  • The treatment Mrs. Plaintiff received for the damage to the structures; and,
  • The permanent disability and impairment to function Mrs. Plaintiff now must endure because of the damage to the structures of the ankle joint.

Finally, Dr. Jones will explain that the weakness and instability of the ankle joint because of the damage to the ligament, and the daily pain and swelling of the ankle and low leg because of the damage to the top of the talus, are permanent conditions, and will only get worse over time. He will explain that Mrs. Plaintiff is in fact permanently disabled because of the damage to the structures of the ankle joint, and that this will effect her for the rest of her life.

Use this model with the defendant's medical expert

Even the most biased defense doctor will have to agree that the ankle joint is comprised of certain anatomical structures, and the importance of these structures to normal function. If the injuries are supported by objective evidence like images, he will also be forced to agree with your explanation of the damage that was caused to the structures. A point of contention may well be the extent of the injuries, but the treating physician will explain this, and should be more credible than the hired gun.

Almost certainly the treatment your plaintiff received will be clearly documented in the medical records, so the defense doctor will have to agree with your explanation of the treatment. A point of contention may be the reasonableness of some of the treatment, but again, the treating physician should be more persuasive.

During the expert deposition follow this model and examine him on the normal anatomy, the importance of the normal anatomy to normal function, the damage to the normal anatomy, the treatment for the damage to the normal anatomy, and finally, the impairment to normal function because of the damage to the normal anatomy. At trial, focus your cross examination to the areas of agreement.

When faced with a defense medical expert who minimizes your plaintiff's residual symptoms and their effects on function, emphasize the importance of the normal structures to normal, symptom-free function. Focus on the abstract. Something like this:

Q: As the body grows and normally develops, the articular surfaces in the ankle joint are smooth, correct?

Q: And a normal ankle joint with normal smooth articular surfaces will not be painful, correct?

Q: If the dome of the talus bone is not smooth, but is instead rough and irregular, in a 24-year-old woman, this is accurately described as an "abnormal condition", correct?

Q: It would not be accurate to describe such an ankle as "normal", would it?

Q: A rough articular surface in an ankle joint can result in pain and swelling, correct?

Keep asking similar questions during the expert deposition and most probably you will develop at least some testimony that is consistent with your position concerning residual symptoms caused by the damage your plaintiff sustained to the normal structures.


This model can effectively educate the jury about any structure and system of the human body: an injury to the frontal lobe and resultant loss of the function controlled by this area; an injury of the cervical spine and the resultant symptoms in a particular nerve distribution; a carotid artery injury and resultant hypoxic brain damage; an ocular injury and resultant loss of vision:

  • Explanation of the normal structures/anatomy;
  • Explanation of the importance of normal anatomy to normal function and how damage can impair function;
  • Explanation of the damage to the normal structures in this case;
  • Explanation of the treatment of the damage to the normal structures in this case;
  • Explanation of the impairment of normal function because of the damage to the normal structures in this case.

At trial use it during opening statement, direct examination of plaintiff's medical expert, and with the defense medical expert. This model can also be effective in written form in a mediation or arbitration brief. It repeats the important information in a way that is not cumulative, and it allows the finder-of-fact to understand and reach his or her conclusions as the process unfolds. This results in learning and acceptance, hopefully at least until the conclusion of deliberations.