John D. Winer, Esq., San Francisco , CA
To make a psychological injury appear more "real" and understandable to a jury, conceptualize the human mind as simply one more part of the human anatomy like a leg, heart and lungs. Instead of having bones, muscles, veins and arteries, the human mind has parts that are called the unconscious, superego, ego, id, defense mechanisms, etc.
Just like you would have your expert explain the anatomy of the back to describe a disk injury, a similar (although obviously more theoretical) anatomical structure should be utilized for the human mind.
You need to believe. Although an increasing number of attorneys, just like an increasing number of the public, understand how minimal trauma can create a psychological injury, many attorneys are still cynical of the subject matter.
There appears to be two areas in which both jurors and attorneys seem to have trouble grasping a relationship between trauma and psychological injury. Those areas are: one, the concept that an objectively innocuous trauma can cause major psychological distress and, two, that any psychological trauma can cause a long term or life time disability. Most people have difficulty accepting these two concepts because they run counter to our own general life experience. We all experience objectively minor traumas on a daily or weekly basis and we are able to successfully cope with them. Further, when a trauma does hit us hard, we may remain anxious or depressed for weeks or maybe even months; however, eventually, with or without treatment, most of us recover.
The important concept to understand in this regard is that all of us are not created equal. Generally speaking, those of us who were fortunate enough to have a fairly healthy psychological upbringing will be more resilient in terms of our ability to withstand psychological trauma and to quickly recover from it.
Thus, the key to understanding, and thus explaining, cases in which there is an innocuous psychological trauma and/or a long term disability rests in understanding what it was about the plaintiff's life which lead them to be vulnerable to a psychological trauma and, particularly, the trauma which is the subject of the lawsuit.
Once you can understand and explain to a jury why the plaintiff was vulnerable to the particular trauma which disabled him/her, you should be able to "sell" the injury.
Do not be scared of plaintiffs with preexisting pathology. In cases of objectively minor trauma which causes a serious psychological injury, it would be surprising if you did not learn that the plaintiff had many problems before the subject trauma. What we need to understand is that without the preexisting pathology, plaintiff would have probably not been seriously injured by an objectively minor trauma. Thus, in most instances, to win the case, you want to concede the preexisting pathology and then explain to the jury why the preexisting vulnerability caused the plaintiff to react to the trauma in a much different way than the jurors would react if they were exposed to the same trauma. If you do not set the plaintiff apart from the jurors, then during deliberations the jurors will base their finding of no injury or no causation on the fact that since they would not have fallen apart after a trauma like the one in your case, it was not reasonable for the plaintiff to have had the same reaction.
You must explain to the jury the psychodynamic mechanism of the plaintiff's injury. In any case, including cases with obviously severe psychological trauma, it is never enough for your expert to testify that the plaintiff was psychological healthy before the trauma, is mentally disordered after the trauma; therefore, the trauma must have created the mental disorder, most often diagnosed as a post traumatic stress disorder. The psychodynamic mechanism for injury will vary from case to case but, basically, it involves a trauma that comes along, overwhelms the plaintiff's coping/defense mechanisms by some interaction with the plaintiff's vulnerability and causes the plaintiff a serious injury. You will need to work with your psychological expert to develop the mechanism. Remember that even in cases of catastrophic trauma, do not ignore the task of explaining the mechanism of injury to the jury. Why? Because, like it or not, the jurors will always place themselves in the plaintiff's shoes. Even if the trauma in your case is so extensive and obvious that it would cause anybody, even the jurors, a mental disorder, you run the risk of the jurors saying, yes, this might have set me back for a year or two, but not cause me a lifetime disability. Thus, the more severe the psychological injury in terms of symptoms and duration, the more you need to concentrate on a psychodynamic explanation of the injury.
We all need to go through life believing that we are, more or less, invulnerable. Deep inside, we all want to believe that we can withstand virtually any trauma that fate hands us. It is this belief in our own invulnerability that makes jurors so resistant to the idea that a seemingly minor trauma could break down our defense mechanisms and/or cause a permanent disability. The only way to overcome this natural resistance with jurors is to set the plaintiff apart from the jurors by focusing on the plaintiff's preexisting condition and the unique ways in which each of us relate to trauma. Your psychological expert needs to explain to the jury that if twelve people faced the exact same trauma, they would have twelve different reactions and it is the uniqueness of our personalities and defense mechanisms that causes us to react in different ways to trauma.
The nature of the trauma should determine how much focus is placed on plaintiff's preexisting condition. Generally speaking, in cases of accidental trauma, you are better off having a plaintiff with some deep seeded vulnerabilities due to their childhood, but who has overcome those disabilities and lead a fairly normal life. In cases of accidental trauma, where a jury will normally not get angry at a defendant, you need a baseline of some significant pre-trauma functioning to establish a quantifiable change in the plaintiff pre-accident and post-accident.
This is less important in cases in which the trauma is personal and more intentional, such as cases of sexual abuse, sexual harassment or discrimination. In those cases, the perpetrator has either knowingly or intuitively prayed upon the very preexisting psychological vulnerability that the defense will claim should lessen the plaintiff's recovery of damages. If the defendant's conduct is bad enough, the defense of preexisting pathology or a personality disorder will backfire at trial. The verdict value in sexual harassment, psychotherapist abuse and discrimination cases often stems from the anger which the jurors feel toward the defendant for taking advantage of and exploiting a vulnerable human being. Thus, it is often to your advantage to emphasize the preexisting pathology in a personal trauma case. This is particularly true in cases against psychotherapists and other "healers" who have expertise in understanding the plaintiff's vulnerability and how carefully it needs to be treated and not exploited.
Ironically, in some sexual harassment cases, a plaintiff's preexisting high functioning may actually work against them. If you cannot explain an underlying vulnerability, a jury will not understand how a high functioning person was not able to reject the advances of the harasser. Since virtually all sexual harassment cases occur in the workplace and since, by definition, the plaintiff has to be at least somewhat functional to be able to work, the key to explaining trauma in sexual harassment cases is to find an underlying vulnerability which the plaintiff has overcome until subjected to the harassment which is the subject of the lawsuit.
It is critical to send the plaintiff out for a psychological evaluation at the very beginning of the case. If you have any sense that a plaintiff is suffering from a psychological injury, you should arrange a psychological evaluation at the initial interview. You should do this especially if the plaintiff is already in treatment with a psychotherapist. By sending the plaintiff out for an evaluation early, you are taking control of the psychological injury aspect of your case and creating evidence of post trauma suffering. It is never safe to rely upon a treating psychotherapist to establish damages in your case. Many treating psychotherapists testify poorly, are focused on aspects of your client's life other than the subject trauma and, frequently, understate the plaintiff's injury and future treatment needs. An early psychological evaluation will provide you with a focus for your psychological injury case and allow you to better evaluate the plaintiff's recovery when he or she is re-evaluated at later stages of the case. This evaluation should be performed by a trauma or abuse specialist.
Consider allowing the defense attorney and/or insurance adjuster to meet with your psychological expert informally at the beginning of the case rather than having the expert write a report or giving a formal deposition.
In psychological injury cases in which there is an indication that the defendant or insurance carrier wants to settle early, you face a dilemma. No meaningful settlement can occur without the defense having an opportunity to learn of the basis of your psychological injury claim. If you allow the defense to do a defense medical, then you will no doubt end up with a report which is negative for your case. If you have your own expert write a report, that report rarely accurately conveys the true nature of the plaintiff's suffering, and fixes your expert's position early in the case. Psychological injury cases are shifting sand cases in which later-discovered evidence may alter your expert's opinions, and you do not want your expert pinned down. Obviously, a formal deposition would pin down your expert in a similar way. We have had great success in allowing the defense attorney to informally meet with the expert (with our office present) and learn of the testimony in a way that the defense can evaluate the case without the expert becoming pinned down.
If the plaintiff's credibility is at issue, perform psychological testing. Psychological testing, much like an x-ray or an MRI in an orthopedic case, provides some objective basis of a plaintiff's injury. Perhaps more importantly, the MMPI and MCMI provide some objective basis of the plaintiff's truthfulness and sincerity. Although these tests cannot prove whether or not the plaintiff's allegations of, lets say, sexual harassment, are accurate, they tend to indicate whether or not the plaintiff is credible.
In final argument, always argue loss of peace of mind. We have learned through the years that the best way to convey psychological suffering to a jury is to make the basic argument that someone can suffer a serious physical injury; as serious as the loss of a limb or paralysis, and as long as they maintain their peace of mind, they can live a happy, fulfilled life. However, once a person loses their peace of mind, their life becomes a living hell.
In a case in which the defendant's conduct was outrageous, and the plaintiff is obviously seriously psychologically damaged, you can then argue that the jury should consider the amount of money that they would award to a paraplegic or someone who lost their limb, and that would form a baseline for the general damage award in this case. However, plaintiff's suffering is even greater because there is a complete loss of the enjoyment of life and ability to cope with the psychological trauma.
This article was authored by John D. Winer. Winer, McKenna & Burritt, LLP specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.