Joseph M. Barrett
Chronic pain:
Effectively presenting it to a jury Communicating the devastating impact of chronic pain on your client’s life takes more than a stack of medical records
Joseph M. Barrett Associate Editor
As a trial lawyer for the people, I
tend to recurringly find myself consider- ing, evaluating, managing and ultimately communicating about pain. Pain is the typical center of the mix in injury cases. Everything relates to it. The need for medical care. The need to see certain specialists. The effect on earnings capaci- ty. The potential for psychological care, for less-typical forms of therapy. So we start with understanding pain
and how it can morph from the acute to the chronic stages, and what it means to the case. But beyond that, the trial lawyer has got to spend time considering how to effectively communicate that pain to peo- ple, or else you’re simply not suited to do the best job for your client. This does- n’t mean being histrionic, overly emo- tive, or theatrical at all. It is about getting a good understanding at all times about how pain is changing your client, docu- menting that, then putting it out there in a logical sequence for fact finders when the case needs to be presented and you seek economic justice. To put it in more mercenary terms
(that’s what the insurance companies and defense lawyers on “the dark side” do anyways, so you might as well under- stand how they view it, as do cynical jurors, and consider how to persuade that audience) the case is about money. You take the case as a business proposi- tion. You negotiate a fee. At the end of the case, the goal is to maximize your client’s recovery, and the best way to do that is to get the jury (or mediator) to believe the effect of the pain you sug- gest is true. This article takes you
64— The Advocate Magazine JULY 2011
through basic steps to achieve that goal.
The initial trauma Typically, we meet the plaintiff short-
ly after the initial trauma which leads to the suggestion of legal representation. The case you have is sometimes quite defined, but so often is pretty hazy as to its effect on the person who hires you, in the long term. This article offers lessons learned through my practice regarding effective presentation of damages, in a general sense. Therefore, to make things simple and point out the critical cross- roads and decisions we are typically con- fronted with, and suggested solutions, I’ll take and explain the following hypotheti- cal case scenario: Traumatic brain injury. Man bangs
head on low concrete beam in a park- ing garage. In his mid-50’s, he is origi- nally from New York, went to law school at an Ivy League school, was married for 20 years, has three teenage chil- dren, works as a lawyer in international law at a boutique firm, lives in a rich section of the City. He comes to your firm having the following injuries: brief loss of consciousness, was dizzy at the scene, was taken by ambulance to a local hospital, put in a precautionary neck brace had a GCS score of 15, alert and oriented x4 when seen by para- medics, diagnostic testing shows noth- ing significant, discharged with pain medicine and anti-inflammatory medi- cine, diagnosis of a neck strain, with directions to see a doctor in three days if things get worse.
You meet the client a couple weeks
after the injury. The client is saying things to you which sound an awful lot like it could be a TBI, but he looks pretty good. You help guide him to an orthope- dic doctor to evaluate the neck sprain, and a neurologist to evaluate the poten- tial for TBI. The evidence comes back that the neck was sprained, there are some abnormalities in the cervical spine worth tying in to pain syndromes the plaintiff describes, facet problems, some squished discs, and some therapy is use- ful. The brain evaluation looks normal, but the plaintiff continues to complain of scattered thoughts, changes in sleep, headaches, and moodiness. You decide to send him to a neuropsychologist. Months pass. Soon you get the
reports of the medical care showing the pain won’t go away in the neck, and the brain? The evidence suggests TBI, the neuropsychologist and neurologist both agree there are some mild functional deficits which could be consistent with frontal lobe damage. For the neck pain, therapy doesn’t solve things, so the patient sees pain-management specialists who offer epidural injections and facet blocks, but they only provide temporary relief. The client seems to never get bet- ter, and you revisit the evidence of the initial trauma. He whacked his head, no doubt, but could people believe he got this injured? That’s your challenge. Pain and its effect, this needs to be evaluated. Credibility needs to be evaluated. You want to ensure you’re not “overstating” or “overbuilding” the case. Conversely,
See Chronic, Page 66
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