Another way the defense tries to unfairly discount and diminish our clients’ disk injuries is to use a strategy I call false framing. They frame the case as if you can assess the existence and severity of harm by looking at the outside. They use an external presentation test for an internal presentation injury. Injuries that have external presentations are things like sprained ankles or broken arms. You can see them from the outside. Sprained ankles look swollen and purple, with obvious limps. Broken arms are obvious, casts and slings give them away. Those injuries may look bad, but they don’t last long. Herniated disk injuries don’t look bad from the outside, but they last forever. Appearances can be deceiving.
You don’t test for disk injuries with external observation any more than doctors check for cholesterol or coronary artery disease by watching patients spin around in gowns. They run blood work, do stress tests, take histories, and do detailed clinical correlations. Likewise, with herniations internal testing is required. MRIs don’t lie and spasms can’t be faked. Taking a history and doing a clinical correlation are also part of the diagnosis.
If you allow the defense to falsely frame your client’s injury as one to be assessed externally, your client will unfairly appear to fail the injury test. It would be like letting a devious classmate switch tests on an “A” student who’s ready to ace an exam, so that she gets the Spanish version, not the English one, knowing the “A” student can’t read Spanish. That wouldn’t be an aptitude test, it would be a dirty trick.
Surveillance or Facebook posts showing your client doing physical activities are classic examples of how the defense switches the test. They suggest, since your client doesn’t look hurt from the outside, they must not be hurt on the inside. They do this even though there is nothing inconsistent on the video with what your client testified to in deposition. To prevent the defense from turning an inside injury assessment into an outside one by using surveillance or Facebook posts you have to set the record straight. Don’t let them turn your case inside out.
First, use the following voir dire questions to inject the concept of you can’t judge a book by Its cover: I need to ask you about something that concerns me. We have all heard of the saying, “You can’t judge a book by its cover”. As we talked about before, I’m not allowed at this point to tell you what’s going on inside with my client and the impact of those internal injuries. I promise you, as soon as we get past this phase and into opening statements and evidence, we will open up the book. My concern is, before we reach that point, human nature is we tend to start prejudging situations. If Ms. Jones were to fidget or start moving around, my concern is some folks may feel she’s putting on a show for you. On the other hand, if she sits still, like she should during this process, my concern is some of you may start judging her condition before we can present you with evidence of what’s going on inside, with thoughts like, “She sure doesn’t look hurt to me”. All I know to do about this situation is talk to you about it. My question is can you keep in mind the realities of this awkward situation and resist the urge to
start assessing the extent of what she has lost in the way of health before we get to open up the book and show you what’s on the inside?
[Also, ask the surveillance voir dire questions found on p. 78 of Don’t Eat the Bruises]
Then, fairly frame the injury as one you can’t judge from the outside:
- This is not cane pain, this is pilot light pain
- This is not the kind of injury that interferes so much with the doing, as with the experience of doing
- List things where the experience of doing is different
- Point out that people treasure the pleasures of life
- Point out that the law recognizes this fact
- You shall consider the impact on enjoyment of life (jury inst.)
- She now lives her life making choices she did not have to make before - To do or not do, knowing there will be a price to pay, such as - - -
- She’s always walking a line between pilot light pain and flare-ups
- This is her new baseline, her new normal
- The little things take a big toll, over the course of time
- Crick in neck analogy
- This was thrust into her life unnaturally
- This is as good as it’s going to get, it’s only going to get worse as the natural aging process overlays on top of the damaged links in her spine
- Keep in mind this is a verdict for all time