Helping the defense counsel, adjuster, mediator, and jury
understand your client’s losses
You represent John Everyman, a fellow whose injury has affected the way in which he lives his life. Like many people, he is a nice fellow who is comfortable in his environment. His environment is not litigation. How do you help him present his story to the decision-makers?
- Visit the house. Bring a recorder and be a person, not a lawyer. Lawyers wear suits—pretty much everyone else these days do not. If John has family, make sure that they are there. Ask John to take you around the house and describe what is meaningful to him and why. Gather the material—whether it be photographs, tangibles, videos, or pictures that you take of John’s project. Ask family members to do the same thing—preferably while John is occupied with other things. Bringing a colleague to interview John separately helps.
- Visit the scene. Remember, the map is not the territory.1 Consider bringing John with you. Have him describe to you—in present tense—the event. Go through the five senses with him.
- Work with professionals. We are lawyers, not filmmakers or storyboard artists. Seek guidance from those who can help you gather the material you need to tell the story. Ask them for input and be open to outcome—don’t tell them how to do their job.
- Don’t try to teach a pig to sing. If John is not a people person, don’t make him out to be one. Accept him for who he is and tell his story, not your idealized one. Everyone comes from the dirt and goes back to it—none of us are untarnished. Telling his story as if he is perfect detracts from your credibility and his.
- Be a good listener. John will tell you everything you need to know—if you stop with the direct questions and ask open-ended ones. “Tell me about that…” gathers information. “So then you became an electrician, right?” does not. Listen for the pauses, too. Sometimes there is something—deep, dark, and sleeping—that John may not volunteer without probing. In that darkness lies danger.
- Don’t be afraid of asking tough questions—or of the answers. If you don’t ask John the question during an interview, a decision-maker will or will want it answered. “Why didn’t you get the surgery if the doctor told you it would make you better?” He has a reason. Make sure you understand what it is.
- Don’t be afraid of feelings. “What were you feeling then?” often gets a response of “Like crap,” from someone like John. Crap is not a feeling. If necessary, drag out a feeling synonym chart and have John pick out words. Decision-makers are persuaded by feelings, not facts. You must help John get to the point where he can start to use some feeling words.
- Use first person, present tense. Short sentences. Present tense. First person. Word pictures. These are the tools that tell a story. Use them. Make sure that John can use them as well—either before a camera, in a deposition, at a mediation, or on the stand.
- Access friends, family, and co-workers. The best people to evaluate the differences between John before the accident and after are the people who know him. John talking about restless nights due to his painful back is interesting. His wife talking about her permanent move to the guest room because John now tosses and turns all through the night—and that he is now permanently sleepless, gruff, and irritable—is compelling.
- Edit, edit, edit. No decision-maker is going to want to see 400 pictures or hear from 30 different friends about what a great person John is. Narrow it down to key materials and present them in ways that appeal to visual, audible, and kinesthetic learners.
Go forth and litigate. Nothing is more enjoyable than helping someone tell the story that makes that person unique.
Some books to read:
- Ball, David. David Ball on Damages: The Essential Update, A Plaintiff’s Attorney’s Guide for Personal Injury and Wrongful Death Cases (2005.)
- Spence, Gerry: Win Your Case: How to present, persuade, and prevail—every place, every time (2005.)
- Tzu, Sun. The Art of War (2003) Running Press Book Publishers, Philadelphia, Pennsylvania.