Lay Damage Witnesses: Diamonds in the Rough

August 13, 2009

This article first appeared in the The Verdict’s Summer 2009, Volume 32:3 issue. The Verdict is published by the Wisconsin Association for Justice

Lay damage witnesses can be real gems. That is true particularly because the defense persists in regarding all of them as costume jewelry. We have all heard defense attorneys deride these witnesses as moaners and groaners. At the end of the day it is often the defense counsel moaning and groaning over the impact these witnesses have on the verdicts.

In any significant injury case a critical aspect is conveying to the jury the overall impact the accident has had on the client’s life. We are constantly trying to paint a “before” and “after” picture which illustrates for a jury the real havoc that is wrought by injuries, particularly injuries that produce chronic pain and/or disability.

In cases where the injury is particularly graphic this may be less essential, although still valuable. The “before” and “after” testimony in cases involving chronic pain from soft tissue injuries, including fibromyalgia cases, is critically important. In many cases, the medical records can be used to paint a picture that suggests the person is really no different after the accident than before. Even the most sympathetic doctor will have records that are a little more than snapshots and are highly unlikely to convey the day-to-day reality of an injury.

Lay witnesses who knew the person both before and after the accident can do precisely that. They are in a position to talk about the changes they observed and the significant toll the accident has taken on the injured person. While lay damage witnesses can be valuable in cases involving more dramatically disabling injuries, I think it is critically important in chronic pain cases, because the nature of pain, divorced from its impact on someone’s life, is very difficult for a jury to grasp or value.

Lay damage witnesses are often more effective than experts not only because they have a much more complex picture of the impact the injury has had on the plaintiff, but also because they are real people just like the jurors. While jurors may respect doctors, they are far more likely to identify with and understand lay witnesses.

Among their many virtues, lay damage witnesses are more often than not nearly impervious to cross-examination. That is in part because the defense seldom bothers to depose them. More broadly, it is extremely difficult for the defense to cross-examine on events and observations that they cannot have been privy to and really has no way of challenging. Juries tend to identify and sympathize with these witnesses. Attacking them is a high-risk undertaking for the defense.

Another critical benefit that flows from the use of lay damage witnesses is the ability to take at least some of the weight and focus of the trial off the plaintiff. We do not choose our plaintiffs, and people with chronic pain problems, particularly fibromyalgia sufferers, often do not make the best witnesses. They are so fixed on the problems that often have come to dominate their lives, that they come across as whiners or complainers. There is also always the risk that the plaintiff will exaggerate or minimize the problem. While lay witnesses cannot supplant the plaintiff, they certainly can supplement and validate the scope of the problems the plaintiff is experiencing.

Just as we do not choose our plaintiffs, unfortunately, we seldom have the luxury of choosing our doctors. Lay witnesses are one of the all too rare instances where we have the luxury of choice. It is important to have the client provide a list of people who knew the client both before and after the accident. Ideally you want people from different aspects of the client’s life, including work, recreational and social activities.

A client’s notion of who is going to make a great witness will not always square with reality. It is critical to interview the witnesses and determine who can be most effective. As in most things, repetition is a negative – not a positive. You want people who can describe problems in different areas of the client’s life and do so effectively. You do not want the jury to hear the same thing many times over.

The preparation of the witness is also important. While I am not a fan of scripting or rehearsing witnesses, it is critical that they understand what their contribution is going to be. They need to be cautioned about either over-reaching or minimizing. When preparing the witnesses, one needs to be certain that they are not saying things that are at odds with what you expect your client to testify to or what other witnesses will be expected to say.

In preparing your witness, it is important they understand what you need from them is not hearsay or conclusory statements. There is a natural inclination for people to say that they heard the person complain or were told be the person that they could no longer do certain things. Aside from the obvious potential problems with hearsay, that testimony is far less effective than testimony that focuses on what the people observed – whether that is someone wincing in pain, someone who loved to garden letting their garden go completely, or someone who used to walk for miles having difficulty getting through a shopping center – the message will come through much more forcefully.

The defense cross-examination of these witnesses is usually rather perfunctory. Nonetheless, the need to be prepared for the inevitable “while they are around your friend and you would like to see something nice happen for them.” Defense lawyers will sometimes go beyond that and ask whether a witness was aware of certain facts. It is not difficult to have the witness prepared to deal with that by effectively saying, “I am here to tell the truth and from what I’ve observed, this is not the same person that I knew before the accident.”

I am not a fan of war stories, but a couple of examples may be useful. In fact, they certainly are not classic war stories, because I did not win these battles. The lay witnesses did.

We had a case with a relatively young man who was a service manager for a large trucking concern. He was injured in a significant automobile accident and went on to have several back surgeries. The defense actually had a psychiatrist testify that the man enjoyed undergoing surgeries.

My client had a number of virtues. He was a self-made man who had worked himself up within the company to the point where he had hoped to purchase an ownership interest. He was believable, although not the most sympathetic person imaginable. This accident had, in his view, essentially destroyed what he had built over the years. As is often the case, it made him angry. While he was not a bad witness, he was not ideal.

We called two witnesses from his employer. One was the general manager and the other was someone who had worked directly with our client. They both gave credible and moving accounts of how hard my client had worked before the accident to get to a position where he was viewed as invaluable within the company. They went on to talk about his efforts to resume work and his inability to do so at anything like his pre-accident level. They spoke of his anger, frustration, and sorrow at his inability to continue in the job he loved.

My client was also an enthusiastic athlete. We brought in a witness to talk about how much he loved golf and softball before the accident. He tried to resume both activities afterwards and was simply unable to do so. They spoke of his obvious pain and sense of loss over his inability to continue with those activities.

We also had his wife testify. Wives are natural “before” and “after” witnesses, although they are probably naturally more suspect than some of the other witnesses. That said, they have a unique prospective and often can talk about seeing the person in unguarded moments that other lay witnesses did not have a chance to see. Spouses can often take some of the pressure off the plaintiff. They can talk about the struggles and frustrations in a way the plaintiff is often unwilling to do, and can almost never do as effectively.

One danger I have encountered with spouses is a tendency for some spouses to want to tell the jury how terrible this has been for them. While that may support a loss of consortium claim, spouses are far more valuable describing the impact the accident has had on the injured person. The loss of consortium claim is really implicit in that testimony and is certainly more effective than testimony that focuses directly on the hardships suffered by the spouse.

In another case, we had a woman with severe fibromyalgia symptoms. As is often the case, she also had exhibited symptoms prior to the accident. The defense focused on her medical records, arguing that there really had not been a significant change. The witness who carried the day in that case was her boss, who happened to be the dean of the medical school. I understand that you do not get little treats like that all the time, but it is surprising how often you can find at least someone in your client’s circle of friends or co-workers who makes an excellent witness. This woman was bullet-proof and her testimony was probably the single biggest factor in a very substantial award.

Another example involved a client who was an executive at a company in Madison and sustained a severely fractured hip in an automobile accident. He was the sort of man who was very active at work and in addition had coached a number of his son’s teams. Predictably, he had returned to work much more quickly than would have been expected and continued to coach, despite the fact that he had significant sequelae in terms of pain and alteration in his gait.

In his case we brought one witness from work and another who had coached a number of sports with him. We met with several of his co-workers and found one in human relations who was particularly articulate and likeable. We were also fortunate enough to have a former Badger quarterback as one of the people he had coached with. That individual was able to speak persuasively about the difference between being able to coach and being able to actually demonstrate and get out and do things with the kids. He did a wonderful job of laying out all the differences he saw before and after the accident. Those witnesses were far more instrumental in achieving a very good result than anything I could have said or done.

I suspect you are thinking that those were hardly diamonds in the rough. You are right. That said, the time and energy it takes to work with your client to develop a list of prospects, interview those prospects, and prepare them to testify is time extremely well spent. As someone who sits on a fair number of arbitration panels, I am constantly amazed at how seldom we see lay damage witnesses in that context. I have never handled a significant arbitration where I have not produced at least a couple of those witnesses. In every case, I believe it has paid significant dividends.

Medical records are an area where the defense always makes hay. Try as we might, there is a limit to what we can do about that. With lay witnesses, the tables are turned. We can produce testimony that is often highly effective and the defense is hard-pressed to do anything about it. It is scarcely surprising the defense is not fond of these witnesses. We ought to be in love with them.

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