Finding the Winning Story
Every compelling story has 4 things:
- Hero: Someone the jury can champion
- Villain: Someone the jury can look to as the antagonistic force, the figure against whom to root.
- Theme: The central idea or underlying message that demonstrates that the bad acts are bigger than all of us and our client’s injuries are an example of the bad conduct, not the root of the bad conduct.
- Conflict: The struggle between opposing forces (care vs cash) that drives the stories theme
Without these components, any story is inert and fails to motivate the jury to act.
Case Simplifying and Structuring
Nursing home cases often have thousands of pages of records, dozens or hundreds of instances of poor care and challenging patient interactions (for example, patient refusals of behavioral problems like spitting, punching, or biting). These records and facts can quickly get out of control, resulting in a chaotic web of distractions leading to juror confusion and even distrust. The essential task is to synthesize this chaos into one or two simple issues, allowing the defense to get marred in the case they are used to using to their advantage.
Finding the Systemic Case
Bad care is upsetting. Corporate greed at the expense of human life is infuriating. Every elder abuse case has two subcases: The what and the why. The what is the bad care that happened. The answer to why the bad care happened is the systemic failures, done intentionally or in total regard for human life, that motivates the jury to punish.
Jury Selection
There are universals that apply to all jury selection: connecting with the jury, gaining the trust of the jury, getting people to feel comfortable discussing sensitive topics, letting jurors open up and do most of the talking, and helping unfavorable juror know this is not the right case for them. But, who the specific jurors who are favorable to this case requires a unique skillset and insights for elder abuse cases.
Opening Statements
Although the facts change from case to case, the purpose of opening statement remains the same in elder abuse case:
- What: Tell the winning story of what happened?
- Why: Show the story of why it happened?
- Anger: Establish the rules / violations of basic human principles
- Activate: Set the stage for why the jury needs to do something
- Undermine: Eliminate the real or perceived defenses
Master persuading the jury to champion your case from the beginning of trial.
Presentation Evidence
While the story is necessary to win the case, the evidence must drive the story. Not all witnesses are created equal. In a typical elder abuse case, there may be over 100 potential witnesses when you consider the multitude of facility caregivers, treating providers, former employees, corporate representatives, and friends and family. Editing who to call, when to call them, and what evidence to elicit is the difference between a defense verdict or a record judgment.
Maximizing Damages
The purpose of damages in elder abuse cases is different than in many other personal injury cases. Moreso than most other cases, the damages are inherently punitive. Your clients likely have no lost earnings, no future medical bills, had few years to live, and a future life that many of us would not choose. So, what drives large verdicts is one that needs to express the intrinsic value of human life, of righting wrongs, and penalizing the violations of basic human values. Damages are less about your client and more about changing a patter of misconduct that will inevitably continue if the jury does not act now.