3 . Focusing the Disease
The next step in the lawyer ’ s educational process is to focus the disease by holding a group discussion with 6 to 9 clients who have the same disease and accompanying problems as the Plaintiff . Explain that you are building a damages model for this disease which will be beneficial to each of them in their own case . The role of the lawyer is to create an open discussion of the sources and types of physical pain and disability , and numerous other tragic consequences that are suffered by these patients . Inquire about loss of enjoyment of life ; assistance required from others to perform daily tasks ; use of canes , crutches , wheelchairs to ambulate ; bathroom assistance required ; and interference with familial relationships . You will get substantial responses from “ Talk about your losses ” and “ Talk about your fears .” From the evidentiary viewpoint the broadest spectrum of damages will come from the multiple varieties of mental anguish that impact these patients constantly : frustration , depression , anger , anxiety , and fears , particularly medical fears , financial fears , fear of death , and familial fears , including loss of consortium .
In a three-hour discussion of this type , the lawyer will become fully educated as to the damages story that the jurors need to hear in this case . The information gleaned from these sources should be sufficient to create a list of symptoms , sources and types of physical pain , multiple types of omnipresent mental anguish , after-effects and side effects of surgeries , treatments , and rehabilitative physical therapy that will be useful in every case of this type . The attorney will also learn the permanent damages which will persist for the Plaintiff ’ s lifetime . This generic information may be applied in all cases in which the Plaintiff is suffering from the same disease .
Turning now to creating the damages trial story for the individual Plaintiff , it is most effective to allow the Plaintiff to tell his own trial story in his own words . This gives the attorney the opportunity to assess the depth of his knowledge about his damages and his abilities as a storyteller .
The attorney is now fully prepared to undertake the deep dive interview with the Plaintiff to create the damages model for his individual case . The interview may require two to three sessions with the Plaintiff , but the immediate goal is to gather the information to create the damages trial story . After the trial story is created , the attorney will work with the Plaintiff to prepare him on the details of the story and how to tell the story effectively .
The next step is to present the Plaintiff to a focus group telling his trial story on direct examination , just as he would in court . A group of 9 to 12 focus group members will analyze , criticize , and comment on the merits and the flaws of both the story and the Plaintiff as a storyteller , with special attention to the weaknesses .
The lawyer listens to the jurors ’ arguments and analysis of every aspect of the story , and their deliberations on damages . There are no arguments made to the focus group members regarding awarding or denying damages . Their information on damages comes from listening to the story of the Plaintiff ’ s testimony on direct .
In deciding on damages , they are instructed to discuss the evidence that supports their award or rejection of damages . They will also discuss the Plaintiff ’ s skills as a storyteller as well as his credibility as a witness . Additionally , jurors will discuss the effect of the confounders on the deliberations and final jury award . After they complete deliberations , they meet with the attorney for detailed discussion of their decisions and what evidence compelled their decisions .
After deliberations and debriefing by the attorney , they will often request to meet again with the Plaintiff to answer additional questions or for the jurors to offer suggestions for what else they would like to have heard discussed in the evidence or to suggest to the Plaintiff methods of improving his storytelling .
In the initial trial story , counsel will include rhetorical devices such as reference points , metaphors , and analogies and listen carefully during deliberations to see if they resonate . Counsel will also listen carefully to the words that juries use , particularly to replace complex words and concepts with more simple terms . This is known as the language of the case and most cases have complex words that need to be simplified .
In direct discussion with focus group members . the lawyer can seek simple words and metaphors by simply asking focus group members . For example , if you have the word “ defibrillation ” in your trial story , explain what this means and ask the jurors to complete this sentence : defibrillation is just like _____. If the answer is electrocution , you now have a powerful word in your trial story that carries pain directly into the unconscious mind .
After the first focus group , Counsel will review the tapes and work closely with the Plaintiff to review and revise the trial story and the storytelling skills of the Plaintiff based on the multiple comments and suggestions for revision by the focus group members and by cocounsel observing the focus group .
The second focus group is a dress rehearsal of the presentation of the trial story which will test both the structure and content of the story and the presentation skills of the storyteller . Praising the skills of the Plaintiff as a storyteller will build confidence and prepare him for a persuasive presentation on direct examination and lessen his fears of cross-examination .
Through practice of direct examination , rhetorical devices such as rhythm , the rule of three , the echo effect , parallel structure and repetition can give the Plaintiff ’ s testimony a rhythmic flow that resonates with the listeners . Careful word choices that use color and invoke the senses by creating visual word pictures , while understating the case , can create trustworthiness by making a quiet but powerful unconscious mind appeal . Trial concepts that work for the lawyer
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