Defusing The Defense In The Opening Statement



There is more to Opening Statements than just telling what the case is all about. A tremendous amount of things have to be accomplished in a short period of time. You have to somehow establish yourself as credible. You can’t stand up and say, I am credible, you have to look, act and sound credible. You have to know your case and believe in it. You want the jury to look at the evidence from your standpoint. You want them to identify emotionally with your client. You want them to feel that justice is on your side, and, you must do this against a set of rules that constrict how you behave on opening statement because you can not argue.

The Law of Opening Statement is simple, it’s straight forward, but its fairly tough. You are not permitted to deliver a final argument during opening statement and anything like that in most parts, will probably be objected to sometimes even by the judge. So that raises the question what is argument, as opposed to what is stating the case? Well, probably, the easiest way to look at it is this It is not tone of voice, it is not whether you are PERSUASIVE.

Arguing is urging, comparing, using opinions and characterizations. A good test of what is argument comes from Jim Jeans at the University of Missouri, Kansas City: “If a witness can say it on the stand, it’s not argument.” You can not state your personal belief and the justice of your client’s cause during opening statement. That’s not permitted. You can’t do that in final argument either. You may not directly ask the jury to climb into the shoes of either the plaintiff or the defendant. That’s called the golden rule. The rule doesn’t say that the way you present what your case is all about cannot put the jury in your client’s shoes, it simply says you can not ask them directly. Good lawyers make an effort to present their facts in such a way that they are naturally appealing to the juries that they are talking to.

Finally, good lawyers have to understand effective communication techniques. They have to know about primacy. What is heard first is going to make a tremendous impact and is more likely to be believed than what comes second or third or fourth or fifth. They must understand the principle or recency the last word has a special place because it is most easily remembered.

Words, the organization of words, plain English, the theme of your case and credibility the basic ingredients of the persuasive Opening Statement. The challenge of the Opening Statement is to put it all together in a way that is attractive to the jury, without jamming it down their throats. The job of the Opening Statement is to provide the finders of fact with the information that they will use to understand what the case is all about. Done effectively, it moves the case along toward the verdict you want.


Jurors do not really keep an open mind no matter what the judge tells them. They simply don’t like to. Jurors are just people and people tend to choose sides immediately. Americans like to pick a side and root for that side. They like to pick a side as soon as possible. Not being able to decide on a side to go with only creates anxiety with the jury. So picking sides early is an anxiety relieving device. In most cases tried on liability, there are enough facts on either side to rationalize a verdict in that party’s favor. Once the jurors have picked the lawyer and the party they will be rooting for, it’s easy to rationalize the facts to justify their decision.

Like most folks, once a juror takes a position, he or she can change, of course, but the longer that juror holds her original position, the more difficult it is to change.

A number of studies have shown that the majority of jurors interviewed stated that the case came out the way they thought it would after Opening Statements. This is not because the jurors are good prophets, but because of the above described human nature principle that jurors want to make up their minds as soon as possible and will hold to that point of view or try to.


A juror must hear the explanation before the accusation. At the time, during your opening, of course, the jurors do not know that what they are hearing is an explanation. You must sensitize the jury to perceive later communications in certain ways based upon their expectations of what is to come. Humanize your client and witnesses. Give them importance in opening and in your initial questions in direct and even in the manner you call them to the witness stand. On the other side of the coin you want to create a negative halo effect for the defendant and its witnesses. In such a way, you can modify or color the way the testimony will be received.

Note that negative halo effects will carry more weight with the jury than positive halo effects. People seem more interested in bad news than good.

Of course, like every decision, whether you want to give a witness a positive or negative halo effect and how you will accomplish this, must have its basis in the facts of the case.

Thus, you must deal with your problems in your Opening Statement and deal with them in such a way that you blend the problem facts utilizing words that build a positive halo effect and blend these facts into the theme of your case.

For example, in the construction cases, it is important that you diminish the impending argument of contributory negligence by the manner in which you weave your facts through the story that unravels during opening statement. In the case of a plaintiff/employee in a suit against third parties, the following halo effect can be established in opening statement:

Walter Johnson was doing what he was told to do. He had a duty to perform and we will learn that he performed his work accordingly and he did it well. He was performing his duties when he was hurt as a result of the carelessness of the contractor and other subcontractor on the job. Walter was carelessly struck down while working in the course of his employment.

We will learn that the defendant, in the rush of getting its job done to move onto another project negligently failed to follow basic customs and rules of the trade followed on such projects for the safety of all workers.

Thus, your theme is that the defendants were negligent in providing an unsafe place for Walter Johnson to work and that caused his disabling injuries. In setting out your facts along this theme, you must pave the way for the proof that the plaintiff was not negligent. You must be ready in advance to diffuse the following typical argument of the defense:

There are two sides to all stories, and you have indicated from the outset of this trial that you want to hear both.

Let me now explain to your open minds what the evidence on behalf of the defendant is …
In the lives of all of us big, little, corporate, and individual things happen which are the fault of no one and sometimes the fault of the person injured. Indeed, that is the way Walter Johnson, a licensed heavy machine operator was operating the piece of equipment which gave rise to this lawsuit in violation of company policy, of safety rules, and worst of all, in a manner that injured two other people. You have agreed that there are two sides to every story and that you will hold your minds open until our side is in. Let me explain to you some of the evidence overlooked by the plaintiff’s counsel in his explanation of what happened. It is as follows … (See Weyman I. Lundquist, Advocacy in Opening Statements, THE LITIGATION MANUAL SECOND EDITION 1989 AMERICAN BAR ASSOCIATION

Indeed all trials involve human beings and their frailties, mistakes and other failings to which all humans are prone. The plaintiff’s story as told by you at the beginning of the case, will be interesting and credible if it reveals both parties “Feet of Clay.” While you should not dwell on the weaknesses of your case, the jury should hear about them from you, not from you opponent. (See Abraham P. Ordover Persuasion and the Opening Statements, THE LITIGATION MANUAL SECOND EDITION 1989 AMERICAN BAR ASSOCIATION) CASTING THE CHARACTERS

Before you get to defusing the defense, you must establish first in the construction type cases, who the defendants are. In most such cases, you have to deal with the complexity of the parties and their relationships. You must eliminate confusion, reducing the facts and issues to the simplest terms. You must let the jury know at the outset that the case really is not confusing or difficult. In most cases, you must direct the liability at the defendant’s named and away from plaintiff’s employer and fellow workers against whom the plaintiff has no claim (because of the existence of worker’s compensation).

In describing your plaintiff worker you must be mindful of the halo effect and describe him as industrious and capable. In the appropriate case you will describe the defendant landlord or contractor as you weave your evidence as one who wanted the job to move along and cut corners in so doing.

In paving the way for the proof that your plaintiff was not negligent, you must anticipate the defendants claim that the plaintiff was in a position to have known of all conditions and assumed the risk or was otherwise careless himself i.e, that he was not an innocent bystander but knowing participant in the bringing about of his own injuries.


You must prepare the jury for the defendant argument that a construction site is by its very nature, a dangerous place. It is important that you bring across that, because of dangers on the work site customs and practices, accepted ways to protect workman on the job site are followed by the reasonable contractor. Through your opening you weave the facts to demonstrate what the conditions should have been and the conditions that were reasonably expected by the plaintiff and how they were not, in fact, in accordance with the “proper” and “accepted” ways on building sites.” Accepted custom” should be used as to imply acceptance by law or industry implying the right thing that was to be done and was not, in fact, done by the defendant. In such cases Custom and Practice is very important. The proofs of the case should establish a standard against which the actions of the defendants will be measured. You must, however, avoid going into a statement of law, for this is the province of your judge. You can accomplish just as much by discussing the accepted “way” of doing things or the “custom and practice” and telling the jury that there is a law stating how the workman should be protected, which will be described by the judge, thereby laying the obvious implication early on that this law was violated by the defendant in this case.

In your opening, you must take aim at the defendants involved and direct liability as applicable to each:

“We will learn that as far as the responsibility for safety on this job went Gyro Construction Company supervised safety and undertook an inspection of all walkways and ramps from time to time and we will learn that the defendant subcontractor, Northern Carpentry Co., built the ramp way. We will learn that the defendant, Gyro, was actively involved in specifying the ramp way and approving of it and that it was in a secure position.”


In the typical store fall down case where the plaintiff is an older woman with all the frailties that come with age including osteoporosis, nearsightedness and a limp, you should bring this all out in your opening in such a way that the evidence will now work for you rather than against you.

We will learn that the defendant opened its doors to all the public, young and old, the healthy and the not so healthy. We will learn that the defendant knew that people who may not be able to walk too well will come into its store. When the defendant opened its doors to all folks and created its salad bar area as a major attraction, it also created a strong likelihood that when its customers served themselves various fruits and the juices from these fruits would accumulate on the floor become slippery and a trap for the unknowing customer whose eyes were focused on the beauty and the colorful array of the salad bar area. We will learn that the defendant spent thousands of dollars in building this display, but not one dollar on mats for a safe walking area.

Of course in the appropriate case, you can bring out that the store had a senior citizen’s day or discounts for senior citizens or arrangements were made for a senior citizen’s bus to stop off in front of the supermarket every morning at 10:30 and every afternoon at 1:30 for example, or you might establish that the shop owner attracted the senior citizens by inviting them to cash their social security checks at its store. Thus you begin to weave your theme in the opening that this store had to be made reasonably safe for them and to accommodate their needs and disabilities. Yet, we will learn that even the simplest of safety measures such as providing an inexpensive mat was totally neglected by the store operator in its rush to obtain the business of the plaintiff and others like situated in life.


I think that the trial lawyer who is able to establish a slogan or a grabber in his Opening is off to a head start. I am not suggesting that you utilize old clichés, but rather a concept that sets the entire tone of the case and becomes your call to action in summation. For example:

“This is the case of a landlord who cut corners on safety to get to the bottom line.”

This is a case of a neglected building.

This is a case of a department store which spent thousands of dollars on displays to attract the attention and pocketbooks of its patrons and spent little to nothing in providing for their safety and well being.

This is a case of a store that invited shoppers to come in and browse but protected them not from the highly polished linoleum floors that became very slippery when wet.

You must defuse the contributory negligence of the plaintiff in the store slip and fall case by establishing that the evidence will show that Mary Jones was doing exactly what the store owner wanted her to do at the time look at its shelves and not its floors and hopefully make a purchase.

We will learn that it set up countless and colorful displays throughout its store to catch the attention of the shoppers. It played pleasant music through its loudspeakers to get its shoppers to think pleasant thoughts which distracted their attention from the hidden danger of its lower shelving. Each time we walk through an aisle, we may be thinking of different things, where we have to be, what we have to do, our family. So Mary Jones was thinking about the purchases she had to make that day and her eyes were focused on the beautifully adorned manikins when she tripped over the dangerously protruding edge of the bottom shelf of the store display.

As you develop your Opening, you should do what you can to strengthen any existing identification between your client and the jury. This, of course, is difficult if you left on the jury any store owners, contractors or landlords. One wise old general once said that it is “easier to ride a horse in the direction that it is going.” An important way to develop your own credibility and identify with the jury is to become the seventh juror through the Opening and trial itself. You explain to the jury that “we will investigate together …” “We will learn that … ” and you ask the jury to come along with you to the scene of the accident.

You will never find a single case which is 100% good or 100% bad. You must determine the weak point, decide their possible affect on the jury, and how you can convert them into plus information in your Opening or at least defuse their negative impact. It is suggested by many that you write a trial plan before giving your opening. At this time, don’t be married to the alternative pleadings that you have given and drop your unwinnable claims. Never proceed with more than three dominant themes in your case. Before you prepare your Opening you must master the facts in your case. You must outline the depositions of each witness, fully understand your documents and cull a central theme. From Opening to Closing your central theme is the rudder of your ship. It will direct your course in the presentation of facts and witnesses and determine your questions on cross examination.

Lastly, and above all, just be yourself.

Good Luck.


Several years ago, Professor Orman Drake who was at that time the Assistant Dean at the College of Liberal Arts at New York University presented this question to a convention of communication experts: If you could condense into a single brief statement everything that has been written on the art of a moving human beings to action what would it be? It would be this What the mind attends to it considers, what the mind does not attend to it dismisses; what the mind attends to continually it believes and what the mind believes, it ultimately does.

I believe that statement is true. Therefore, I believe that the key to a successful design of your case is to focus the minds of the jurors on the minimum proof you need to win it. That’s your objective but how do you achieve it?


First you need to select the motif, the theme or the THRUST OR HOOK of your case. To quote Dr. Andy Watson, the University of Michigan, who is a psychologist and lawyer, you need to select a narrow target, you need to zero in on it, you need to keep it highly visible and you need to relate everything to it throughout the trial.

In a product case, the motif, the theme or the thrust of your case, should be consumer protection since your goal is to elevate the jury to a higher purpose important to society and to persuade the jury that a wrong was committed, and it is their duty, their responsibility and within their power to right that wrong.

The objective, of course, is to shift the burden of the loss from the person who suffered it to the manufacture of the defective product which caused the injury.

Your opening statement on a product case should set the stage for what past ATLA President Bill Coleson calls the Final Five where you argue in summation to the jury that they are the conscious of the community, they set the standards for consumer safety and they have the power to send a message to the corporate giants of this country that they will not tolerate disregard for consumer safety.

In a trial of any case it’s really a left brain, right brain appeal. The issue of liability is decided intellectually which is a left brain function and the issue of damages is decided emotionally which is a right brain function and you need to appeal to them both.

It is important to understand that jurors have built in problems stemming from their inability to absorb everything that occurs in a courtroom. Just think about it, the Bailiff raps his gavel and suddenly jurors are immersed in an alien, elaborate communications network. They’re interrogated by lawyers, they receive conflicting testimony from witnesses. They receive arguments from lawyers, they receive instructions from the judge and in a jury room, they are both the originator and a receiver of communications. As a result, it shouldn’t be any surprise that most of the content is lost to this process and what remains is essentially impression.

Based upon studies of the University of Iowa, we notice an extremely high correlation between presentation and information transmission and that it is the impression based upon presentation rather then the content of the presentation itself that is most important to persuasion, especially, in the United States where jurors are not permitted to take notes as they are in Great Britain.

Third, it’s important to recognize that as the equitable life insurance ad says, people are different, they have different social perspectives and they have different pre dispositions which means that people will react differently to the same communication. However, there are certain patterns in perception that apply generally during the three phases of the influence process: (1) Attention; (2) Comprehension and (3) Acceptance.

Dr. Wayne Minik, the author of The Art of Persuasion, states that communication should be designed to win belief and stimulate action by employing those factors that determine Human Behavior. He states that your opening statement must command attention of the jury, the jury must understand your communication as you intended, the jury must believe the information to be credible or accurate and the information must conform to the juror’s values as to what is right and wrong and then finally, of course, the jury must be motivated to act which is the result of your proof.

Therefore, in opening statement, the plaintiff’s lawyer, must do three things: He must state to the jury the facts in positive, forceful language, he must state to the jury exactly what it’s role is and what’s expected of it and he must present evidence after opening statement and prove what he said is true in order to motivate the jury to act.

The opening statement is the curtain raiser, in a product case, or medical malpractice case, or a slip and fall case, in a automobile negligence case. The opening statement should command the attention of the jury, it should establish interest and it should create an identity between your client and the jury. For instance, in a product case it might start like this:
Good morning ladies and gentlemen, November 19, 1989 was an unfortunate day in the life of Jim Berry. It started well, it was a bright, crisp, Fall morning. Jim and his two friends were hunting in Upstate New York, but the day ended in disaster. November 19, 1989 was the day a rifle blew up in Jim Berry’s face. Together, during this trial we will investigate why the rifle exploded and how that could have been prevented and how it should have been prevented.
The Duke University Studies of Language and Law classify language as powerful and powerless.

Obviously powerful is preferred to powerless because the speaker is perceived to be more confident, more trust worthy and more credible. The Duke study categorizes powerless speech into five categories: hedges, intensifiers, hesitations, polite references, and question intonations and we should eliminate all five from our speech vocabulary. Hedges are words such as, I think or maybe. Intensifiers are words such as, very, or definitely. Hesitations are words such as well, or any of those things that we use for a pause so we can collect are thoughts. Polite References are words such as please, or sir and question intonations are declaratory sentences with a rise on the end. Those we should all eliminate.

And what about body codes or cues? There is no questions that body codes and cues are essential to persuasion as any face to face confrontation necessarily has a non verbal component. Dr. Albert Meribian was a research psychologist concluded that only 7% of your total message in the courtroom is verbal, 38% is vocal which includes, pitch, volume, intonations, speed and inflexion of your voice, and 55% of your total message is non verbal. In essence, this means that the pitch, volume, intonations, speed and inflexion of your voice, your body posture and especially your facial expressions are all more important to persuasion in the courtroom than is the content. And that’s again because people decide cases based on impressions not facts, and, impressions are the result of your total message both verbal and non verbal.

The product and malpractice case is often reduced to a battle of the experts. Two factors effect your expert’s credibility in the courtroom. One is apparent expertness, the other is trustworthiness.

Several studies have analyzed the effects of varying expertness and trustworthiness of the communicator with these results:

  1. Communication attributed to low credibility sources tended to be considered more biased and unfair than identical ones attributed to high credibility sources;
  2. High credibility sources carry substantially greater immediate effect on the audiences opinion then low credibility sources; and
  3. The effects on opinion were the result of variations in source credibility which seem to influence primarily, the audiences motivation to accept the conclusions advocated, which is exactly your purpose in the courtroom.

Therefore, the more credible your expert witness is perceived to be, the more likely you will be able to motivate the jury to act because the jury’s initial estimate of appearance, style and delivery have a strong influence on the credibility attached to what your expert says during the trial. Forensic psychologists agree that prestige suggestion has a definite and measurable effect on the development of attitudes because it creates what they call a positive halo effect.

Therefore, to help win the battle of the experts in a product case, you should:

  • Identify your expert witnesses during jury selection;
  • You should detail their credentials in opening statement;
  • You should fully develop their credentials when you qualify them on direct examination during your case and;
  • You should stress their credentials in final argument to the jury.

There are some basic principles of persuasion that apply to all cases . The first is primacy. Primacy means that we tend to believe most deeply that which we first heard and which ever side of the issue is presented first will have a greater influence on opinion than equally strong but later presentation of the opposite side. At the start of a trial in a civil case, the plaintiff speaks first, therefore, he has the advantage of primacy.

The opening statement establishes a set which serves as a frame of reference into which jurors fit evidence which was later presented. This set operates to color the evidence which is necessarily compared and evaluated when it is presented.

Set phenomena or synthesia is the second principle you should consider in preparing your Trial Mosaic. Set is a readiness or predisposition to respond to evidence in a predictable way. How a juror perceives the evidence presented depends what he is prepared for. The central application of set phenomena for the trial lawyer is that a juror will see what he is prepared to see and he will hear what is prepared to hear.

The third general principle is the Zergernic effect which essentially means that jurors will retain information better that is purposely delayed. The technique is to build suspense or curiosity in opening statement which is fulfilled when the evidence is presented during the case in chief. The Zergernic effect is an excellent tool for the plaintiff in relation to damages but not liability. For instance, the plaintiff might tell the jury in opening statement that Joe suffered horrible and disabling injuries as a result of the product defect or the manufacturer defect or the design defect or the defect because of failure to warn and purposely delay the details until Joe’s treating physician testifies during the trial.

The fourth principle is autistic or idiosyncratic perception. Jurors limit or adjust perception to fit their own needs and values and tend to personalize and even distort details in order to make them correspond to their own frames of reference. Two factors permit autistic or idiosyncratic perception. One vague or ambiguous sensations and the other is sensations of short duration. The antidotes are obvious.

Clarity and amplification are essential throughout the trial because jurors do not retain all the details in the testimony of any single witness and the shorter the witness, the more likely they will be to forget the details.

Therefore, if a certain fact is key which is always true to a product case, you should present cumulative evidence in order to fix that fact to jurors mind because persuasion or speed of agreement increases as a function of the number of times a person is exposed to a message.

However, the principle of repetition relates to the facts, not descriptive words or phrases that describe the facts. You should avoid repetition of descriptive words or phrases because the impact of a word or phrase is reduced in correlation with the number of times it is said. Behavioral scientists call this semantic satiation which simply means that the jurors will become desensitized if over saturated and besides if more than one witness uses the same descriptive word or phrase, your case may seem contrived which can be counterproductive.


The trial in realty is a contest of competing characterizations of events and arguable inferences based upon those events with both sides contending that they are right. The first person to observe that our thought process involves imagining what we think in terms of images was Aristotle. He said that you cannot create an image without thinking and conversely you cannot think without creating an image.

Dr. Elizabeth Loftus, of the University of Washington, conducted a series of experiments to determine the effect of choice of words in a question on an answer with these results:

Experiment #1:
100 students were shown a film of a traffic collision. One half were asked:” Did you see the broken headlight?”, and the other half were asked, “Did you see a broken headlight?”
The results:
There were over twice as many students in group one who were asked the question with the definite article that saw the broken headlight in the film. As compared to students in group two who were asked the same question with an indefinite article. So what’s the explanation of these results, Dr. Loftus states that it is because the question, Did you see the broken headlight?, implies there was a broken headlight while the question, Did you see a broken headlight?, does not apply the existence or non existence of a broken headlight.

Experiment #2:
The two groups of students were shown a second film and were asked to estimate the speed of the same vehicle involved in an intersection collision.

  1. Group one was asked, How fast was the other car going when it smashed into the other car?
  2. And group two was asked, How fast was the other car going when it hit the other car?

The average estimate in group one was 40.8 miles per hour. The average estimate in group two was 34 miles per hour.

What does this prove? It proves the verb used in the question does influence the answer. The words smashed and hit differ in what they imply regarding the speed and force of impact. When a witness sees an automobile collision, or for that matter any complex fast moving occurrence, he forms a memory representation that consists of bits and pieces of the actual event which Dr. Loftus refers to as original information.

When you ask the question, How fast was the other car going when it smashed into the car?, your question includes new external information which enters into the witness’s memory and if believed will actually alter or change the witness’s memory.

How about in the courtroom? Will your choice of words during the various phases of the trial influence the jurors image of the event described, the answer is it will, absolutely. Your choice of words will necessarily affect the reconstruction of the event you are describing in the minds of the jurors because the meaning that people assign to words also incorporates a value judgment.

In the 1970 issue of the Arizona State Law Journal, there is an article called Experimental Research On the Organization and Persuasive Arguments and the Application to Courtroom Communication, it was written by Dr. Robert Lawson of the University of Kentucky. Dr. Lawson conducted experiments dividing an audience like this into two groups.

To both groups he described the same person. To the first group he said, George is intelligent, industrious, impulsive, critical, stubborn and envious.

To the second group he said that, George is envious, stubborn, critical, impulsive, industrious and intelligent.

He stated the same adjectives to both groups, but in reverse order. Then he asked both groups to state their impressions of George.

The conclusion of group one was that George was an able person with minor short comings. The conclusion of group two was that George had a problem personality with serious difficulties. Now these were intelligent people who heard the same words but in a different order. This experiment confirms previous studies that when contradictory information is presented in a single communication by a single communicator, there is a pronounced tendency for the items presented first to dominate the impression received.

These experiments by Dr. Loftus and Dr. Lawson are dramatic proof that the choice of words and the order of words in the courtroom are critical because of the impressions or images that they create.


Behavioral scientists agree that people retain information that they see and hear in the courtroom. In fact, the statistics are that people will retain 20% of what they hear, they will retain 40% of what they see and they will retain 80% of what they see and hear. What does that indicate? Visual aide including videotapes, still photographs, films, charts, schematic drawings and models are important to persuasion and shouldn’t be used just during your presentation and case they should be used be used in opening statement to assist a jury in understanding the plaintiff’s case. Now to avoid objections, obviously you need to obtain pre trial ruling relating to the admissibility of any exhibits which you intend to use during opening statement.


We are products of our past. The mind, body, and spirit reflect the accumulation of life experience which has shaped us into who we are, what we are, and what we may be. The events and situations of our lives usually set the pattern for how we respond to the stresses of life, including accidents and injuries. Our medical past includes how we have lived, what we have done, and what has been done to us.

Joseph Lichtor, MD, Understanding Personal Injuries in Tort Litigation, Hanrow Press, 1986.
From beginning to end, we must keep in mind that in the persuasive presentation of the personal injury case the key is proximate cause.

Classically, the defense arguments are;

  • the plaintiff was not injured,
  • if the plaintiff was injured, it was not as a result of the incident complained of and,
  • if the plaintiff is suffering pain and residual disabilities, it is wholly and solely due to pre existing, co existing or subsequent conditions which have no relationship to the subject accident.

It is the duty of the plaintiff’s attorney to link the External Event with the Internal Response. Courtroom success turns on linking the external initiating event to the subsequent internal medical results. In short, this gives you your legal proximate cause without which your case must fail as a matter of law.

Therefore, the primary observation required of the jury, as the great trial lawyer, Moe Levine, described many years ago is: Who was this man, what has been done to him, what was he like before this accident and, what has he become as a result. The jury must recognize the question is not how this accident would affect another man or woman and what impact would it have on most people’s lives, but rather how did it affect this person. It is his life which is the focus of the case.


In order to properly present the “Whole Man Theory” in the courtroom, once the case is accepted, it is your duty and that of your associates and legal assistants to commence appropriate management of the medical aspects of the case. At the very outset, therefore, you must obtain all prior medical records and reports on the plaintiff including the result of school, work and insurance company related physical exams and the office notes of all prior treating and examining physicians as well as all prior hospital records, radiological reports and other test results.

If your client applied for insurance in the past ten years (and equally important at any time after the accident) we must obtain a copy of the application, the physical exam and any exclusions in the policy.

If your client was a member of a health club, we must obtain the application and the club records. It is absolutely critical that we obtain the records of the family physicians and dentists, school health records and the medical records of the client from the medical department of his or her employer. This is particularly important in handling the case of an injured law enforcement officer, fireman, or construction worker. If the plaintiff’s work requires periodic physical exams, we must determine the last time the client was examined, obtain all prior records and also determine the next time the client is to be examined for work.


It is important to clearly explain to the client, not to be afraid to give up what he or she has to. Where there are pre existing conditions, failure to disclose them to the current treating or examining physicians, when asked will not only create a genuine credibility problem for the client, but will severely damage the foundation upon which the diagnosis and opinion on proximate cause of the current treating and examining physicians is based.

Any physician will tell you that critical to a competent injury evaluation is full disclosure of the past history by the patient and a complete knowledge of this medical information by the physician. Prior accidents and injuries, medical illnesses, operations, hospitalizations, pre existing congenital and developmental abnormalities, age changes, psychosocial information, work history and functional background all go to make up the elements of the plaintiff’s past history and must be fully evaluated in order to determine causality between the current complaints and symptomatology with the subject traumatic event.

It is also important that we obtain all records relating to prior claims of the plaintiff, including medical reports, answers to interrogatories, any prior PIP, liability or worker’s compensation files, deposition transcripts, defense exams and copies of releases and awards either in the Superior Court or the Division of Worker’s Compensation.
Therefore, your personal injury initial interview form should include the following sections:


A. Name and Address of Family Physician:
B. Have you had any health problems?:
(It is important that we know this information because the records of any physician you have seen in the past three years will probably be subpoenaed by the defense).
As to each health problem, please state the following:

  • Describe each health problem.
  • Dates each condition was active.
  • Name, address, telephone number and speciality of each treating physician.
  • Treatment rendered by each.
  • Are you still under treatment or medication, if so, describe.

C. Have you ever been injured in the past?:
If so, give details:

  • Nature of injury
  • Date
  • How were you injured
  • Where
  • Name, address, specialty of each physician treating you
  • Were any claims made? If yes, please answer the information requested in section #10

D. Have you ever had radiological tests in the past?:
If so, give details:

  • Type of radiological tests
  • Date and place administered
  • Reason for tests
  • Results
  • Provide true copy of radiological report (x ray, CT Scan, MRI, Bone Scan, Myelogram, etc.)
  • What action was taken, if any by your physician as a result of these tests



If you were involved in any type of accident resulting in a claim made by you, please state the following:

  • When and where was each claim or suit made?
  • Type of claim madee?
  • Name and address of attorneye?
  • Was suit instituted?e?
  • Amount of settlement or verdicte?
  • Date case closede?
  • Provide our office with copies of any and all papers relating to that case including copies of the complaint, answers to interrogatories, medical reports, deposition transcripts and releases, agreement or order of judgment.e?


I. If you have ever been involved in any previous accidents even if no personal injuries were claimed, state:

  • The date of accident
  • Type of accident
  • Accident location
  • Names and addresses of parties involved
  • Provide copies of any accident reports

II. If you are involved in another accident, whether or not you are injured, call us immediately with all details and send us the accident report.


Other than as stated in section 9, have you been examined by any physician for any reason in the last ten years?
If so, state the name and address of the physician and the reason for the exam:

  • Employment physicals: (Does your employment require periodic physicals)
  • Insurance physicals
  • School physicals

It becomes your duty to make sure that the treating or examining physicians are fully apprised of the prior medical history and receive all records necessary to render the appropriate opinions needed in such cases.


It is important to understand the mechanisms of trauma in the subject incident, how the injuries were caused how current trauma impacted on pre existing conditions. The biomechanic specialists tell us that there are at least three traumatic events that take place in the typical auto accident scenario. The first crash is that between the respective vehicles. The second impact involves the body of the plaintiff with the interior of the vehicle or other occupants of it and, the third impact, is the internal impact of the various structures of the body against others as a result of the transmission of the forces involved in the subject crash.

Thus, the personal injury attorney must develop a fund of knowledge in anatomy, physiology, pathophysiology and the biomechanics of trauma. Without such knowledge, for example, one could never persuasively present a claim for injuries in an elderly patient such as one suffering osteoporosis (an age related disorder characterized by decreased bone mass and by increased susceptibility to fractures in the absence of other recognizable causes of bone loss in post menopausal women and older persons in general), or a post traumatic rheumatoid arthritis case or cases involving scoliosis (lateral curvature of the spine), spondylolisthesis (a forward movement of the body of one of the lower lumbar vertebrae on the vertebra below it or upon the sacrum), spondylolysis (often applied nonspecifically to any lesion of the spine of a degenerative nature) or other boney defects. For years claimants have been denied justice because not only lawyers but also their physicians did not understand the subtle but devastating cognative injuries in closed head trauma cases.


The difference between activation and aggravation and the presentation of medical proofs is far more than merely one of semantics in light of the case of Tisdale vs. Fields, 183 NJ Super 8. Most physicians do not recognize the legal significance in the choice of the words and tend to lump all under the category of aggravation since they are called upon to treat the current condition and generally leave it to the lawyer to sift through causality. An aggravation means that the condition was an active process causing pain and limitations before the accident and has now worsened as a result. Activation means that there was simply an underlying asymptomatic condition that has now been triggered by the recent trauma.

In the usual negligence case, the plaintiff has the burden of establishing all elements of his cause of action including damages. If one of the injuries include an aggravation of a pre existing condition or injury, it becomes the plaintiff’s obligation through his or her medical witnesses to prove the percentage increase or worsening of the condition that pre existed the accident. In the case where the current treating physician had not seen the plaintiff prior to the subject traumatic event, this becomes rather difficult. In such cases the only way to approach the problem is by providing a complete prior medical, work and social history to the current physician along with all prior radiological and other test results where applicable. The plaintiff’s attorney must then cull all of that information into an appropriate hypothetical question to elicit from the current treating physician his opinion as to the quantum of the aggravation.

It must be noted that a different quantum of proof is necessary in the medical negligence case. See Fosgate vs. Corona, 66 NJ 268, 271 72 and NJ Model Jury Charges, Civil 3rd Edition, Chapter 6.10G(2). In Fosgate, as under the Model Jury Charge, the burden to prove the degree of aggravation shifts to the culpable defendant in a medical negligence case to demonstrate the reasonable apportionment and if the tortfeasor cannot, he or she is held responsible for the entire result. As to all other cases, see Tisdale vs. Fields, Supra, and Section 6.10G(1) of the New Jersey Model Jury Charges, Civil 3rd Edition.

Obviously if the case involves an activation of a pre existing underlying asymptomatic condition that has now been rendered symptomatic, the plaintiff has an easier row to hoe. In an activation type case there is no obligation to prove a quantum increase in the condition if it was previously asymptomatic and triggered by the accident. Following the basic premise of the law that a wrongdoer takes his plaintiff as he finds him, the defense cannot obtain any mileage where a pre existing and underlying condition has been activated and any attempts at doing so should be argued as overreaching and a misrepresentation by the defense to the jury.


Wherever possible the current treating physicians must obtain the reports and records of the prior treating or family physicians even where they demonstrate the lack of pretrauma complaints or symptomatology. Such information bolsters your experts’ opinion on causation. If your treating physician states that such information obtained from prior treating or family physicians is generally reasonably relied on by such experts in forming opinions or inferences upon the subject of diagnosis and proximate cause, then he may refer to such helpful information as a basis in part for his opinion on causation at the time of trial, even though such information is hearsay. Rule 56 (2) NJ Rules of Evidence.


I believe that the use of properly presented “before and after witnesses” is extremely helpful in any personal injury case and critical in the case involving pre existing conditions. For example, in a back injury case, if the plaintiff was a good worker, put in overtime, was regarded well by his supervisor, co worker and employer, that testimony becomes far more significant than an x ray that shows pre existing degenerative disc disease where plaintiff contends that he never experienced nor was limited in any way by back pain. Such testimony becomes quite poignant where after the accident these witnesses describe their observations of a rather limited plaintiff, a different man, who gets through the day nobly but with great effort and in obvious pain.


A. The defendant must take the plaintiff as he finds Him or Her.
There is a basic concept in our legal philosophy of what is right and what is fair with regard to pre existing physical conditions of an innocent tort victim and that maxim or rule is that a wrongdoer takes an innocent victim as he finds him. It should not lie in the mouth of the wrongdoer to argue that if the plaintiff was a perfect healthy specimen before the accident, he or she would not have suffered the injuries complained of.

For example, if a drunk driver crashes into a person stopped at a traffic light at 20 mph and that person becomes paralyzed because he had a pre existing condition from birth that made him more susceptible to injury, the defendant cannot complain and argue that if the plaintiff did not have this condition, he would not have been hurt as bad. Let us say that the drunk didn’t run in to the rear of the plaintiff’s car but rather into an egg truck and cartons of eggs were smashed all over the roadway, would it be fair for the careless driver to say well, if he were delivering golf balls and not eggs, he would not have lost his cargo, there would be no damage of course not. The wrongdoer takes his plaintiff as he finds him and must pay for the damages which are in accordance with the loss to that person.

You see, it is that person’s loss which we are obligated to look at. What did John Smith lose, not what would have some hypothetical person have lost.

Let’s take the case of the man whose left arm was crippled at birth, but he had one good right arm, which was robbed from him in the auto accident. He was previously able to get past his disability and become a contributing member of society and hold a job. As a result of his injury, he is no longer able to work. Do we cut his value in half because he had already a bad arm and argue that if he had two good arms he would be able to work. You must take the position that his injury does not have lesser value, but rather it has greater value because it is this man’s life and what he made of it and, what it has now become as a result of the defendant’s wrongdoing. This is the focus of the case and not some hypothetical person’s life. Or take another example; Who loses more; the man with two good eyes who loses one as a result of a defectively designed machine at work, or the worker blind in one eye at birth who now loses his other? If you have a man with $10 Million and take $5 Million away from him, he still has $5 Million. But, if you have a man with but a few dollars and you take away that from him you have taken away everything. The focus is not what you have taken from the person, but rather what he is left with.


Just as your most valuable dollars are your last dollars, in the case of the elderly plaintiff your most valuable days are your last days. So in those cases where the defense attempts to beat up on your elderly client because he or she carries with him those frailties experienced by most of the elderly, it is important to point out that they were leading full and vibrant lives, baby sat for the grandchildren, were members of their local church or synagogue and were active in community affairs. If you have the good fortune of having that type of a factual scenario in regard to the pre accident history of your elderly plaintiff and do not bring any of this out, in my opinion, you have committed malpractice as to that particular case.

In the case of the elderly plaintiff, following the concept that you take your plaintiff as you find him or her, we must turn their age around and make it work for them. We must argue that no injury to an elderly plaintiff should ever be regarded as minor. What might be a minor injury to the youth or athletic person could be devastating to a senior citizen who often lacks the physical capacity to “bounce back.” Classically the seemingly minor injury can cause a case of osteoarthritis which may have been latent to flare up and become painful and debilitating. Quite often a fracture will totally alter the course of an elderly person’s life. More often than not it is the elderly who through injury lose their independence and dignity because of trauma. The elderly plaintiff becomes a shut in or has to move into a facility offering physical assistance and meal service and is left relegated to a life of sitting in front of television set or by a window watching the world pass by. The emphasis on the elderly case should be on the loss of dignity and the ability to be self sufficient, active and helpful to others. It is important to remind the jurors that John Houston spoke true in the old September Song “as the days linger on to those precious few,” each passing day assumes greater significance to the elderly plaintiff.

Do not be fooled by the defense argument that your plaintiff has outlived the clock. A 76 year old male has a life expectancy of 8.13 years and, a female of similar age has a life expectancy of 10.26 years according to the United States Life Tables published by the US Department of Health Education and Welfare which are printed towards the end of the New Jersey Lawyer’s Diary. Some people say that when you take away the sense of independence of the elderly, you have taken away everything. Thus, a creative per diem calculation can often be applied in such cases involving the last golden years. Again, in such cases, “before and after witnesses” are essential to the proper presentation of the damage claim.

B. The accident need not be the sole cause, but the proximate cause of Plaintiff’s injuries, pain and residual physical impairment.
The concept that you take your plaintiff as a you find him, flows from the concept of proximate cause in that it is not necessary that the tortfeasor anticipate the very occurrence which results so long as it can be said that the injury was the natural and probable consequence of the wrongful act and it was within the realm of foreseeability that some harm might result to the plaintiff. This is the classic proximate cause charge as found in Section 7.10 of the Model Jury Charges and the cases there cited. We must demonstrate to the jury by example that proximate cause does not mean the only cause in life’s chain of events, but rather the efficient cause, or in plain English, the trigger.

In the case of the individual who had an underlying condition such as rheumatoid arthritis or osteoarthritis, the defendant might tell the jury that he should not be held accountable for this unfortunate but non accident caused disease. The plaintiff on the other hand could very well explain proximate cause this way: If you were driving in the street and you negligently run into a parked car, you will probably hurt yourself and cause damage to both cars. Based on human experience, we normally expect such results. However, suppose the parked car had a can of gasoline in the trunk and when your car ran into it’s rear, it exploded and passersby were injured, it would be no defense to say, “I didn’t know the car was loaded with a can of gasoline,” because the point is simply that you should not have run into a parked car in the first place. Well here, John Jones’ body was like the parked car, but instead of containing gasoline it contained arthritis. It could have stayed just as it was without causing any trouble whatsoever. It probably would have stayed that way unless something ignited it. In this case, the gasoline was rheumatoid arthritis which was ignited from a symptom free state into a source of continuing pain and disability as a result of the defendant’s negligence. John’s body literally exploded out with disease and pain and his entire life was changed. Just because the defendant could not foresee that particular result does not exculpate him from liability, he is in the same position as he would be had he hit a car with gasoline in its trunk causing an explosion.

C. The plaintiff need only prove each element of his case by a preponderance of the credible evidence.

One of the reasons why plaintiff claims are dramatically reduced or lost when there are pre existing medical conditions raised by the defense is the fact that the jury often does not understand what is meant by proof by a preponderance of the credible evidence. In a civil suit, we only have to demonstrate our side of the case as more likely than not, more probable than not. Most jurors are familiar with the Perry Mason show and similar shows on TV, when each week they hear of proof beyond a reasonable doubt. You must explain to them that this is not Perry Mason and not a criminal case. All the plaintiff needs to do is tip the scales of justice by the believable evidence ever so slightly in his favor and he is entitled to their verdict. So to when we ask a doctor for his opinion on activation or aggravation. We must explain to the jury that his opinion is not based on absolute certainty, but on reasonable medical probabilities.

If I can use a crude analogy, it is like putting two little boys on a teeter totter. One weighs 51 lbs., the other 49 lbs., and there is a little tilt in the scales where the heavier boy is. That is all that was required by law of the physicians in this case in rendering an opinion. If the weight of the medical evidence was 51% or better, that the incident caused the pain and disability to plaintiff, he is then entitled to a verdict in his favor. (You, of course, are at liberty to discuss with the jury how you have proved the case by much more than that even though by law you did not have to.)

When all else fails there is something to be said for the utilization of patriotism:
The defendants in this case have made much out of the pre existing osteomyelitis of Jack Williams. But, listen to his Honor’s charge of the law, and you will find that under the law, the defendant takes his victim as he finds him. The defendant is not entitled to demand that his victim be “a virgin in a thermos bottle.” The law is made to protect the weak as well as the strong. The law should protect the weak who need the protection of the law even more than the strong. Many patriotic men come back from the military with partial disabilities. Would it not be disillusioning if we told them that while this country gives them the purple heart, it gives everybody else the right to injure them for nothing.


The client who sits opposite you at the initial interview, is the sum of his entire life experience. To properly represent him in a courtroom, you must first answer the questions: Who Is This Man? What was his life like, and, what has it become? Only by obtaining every shred of information on his prior medical, work, social and, psychosocial history can you begin to answer these questions and understand the life of the man you are now called upon to represent. You must collect this information as soon as reasonably possible because your thorough review and understanding of it is the foundation upon which you will work in developing the presentation of his medical proofs.

You will never be able to properly understand your client, his needs, and his problems without such knowledge. You will never be able to properly represent him and lead him through each phase of the litigation process advising him on the appropriateness of various answers to interrogatories or in testimony at the time of depositions and at trial; nor will you be able to properly discuss medical issues with his physicians as you must come to do eventually in any case that you intend to try. You will never be able to develop any aspect of the trial itself from opening through direct, cross examination and summation without answering the primary question, Who Is This Man?

If you have found anything that has been helpful to you in this little monograph then any thanks should go to the great trial lawyers of the Association of Trial Lawyer’s of America whose collective wisdom over the years has greatly enhanced the art of trial advocacy and from whom I have borrowed so much for the presentation of this paper. Mark Twain once said that when you steal from one man, that is theft but when you steal from many, that is called research. Many of the concepts that I have discussed here actually came from a fine trial lawyer whom I never met and who passed away around the time I was admitted to the bar. Moe Levine of New York first established the concept of the Whole Man Theory back in the 1960’s which has been followed and developed by many trial lawyers since.

The purpose of developing the Prior Medical History is not only to understand and present the Whole Man, but also to anticipate and diffuse the defendants’ arguments challenging proximate cause based on pre existing conditions. From the very moment that you open the file, you must begin to anticipate the defense arguments so that you can galvanize your case accordingly. Old Chinese wiseman say that the mosquito repellant is more effective than the mosquito bite lotion.

Through dedication and commitment to excellence, there is no doubt that the drudge of the office and library will become the lion of the courtroom.

Good Luck.