Vol. 53 No. 4

Trial Magazine

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All too often, defense attorneys successfully divert the jury’s attention by blaming innocent people for the negligence of others. Fight this bias with visual aids that put the jurors in your client’s shoes.

William S. Bailey Aoril 2017

More than 200 years ago, Dr. Samuel Johnson correctly observed that we “scarcely believe” the experiences of others that we have not had ourselves.1 Perception is selective—we see what we want to see, interpreting new information through the perceptual bias of past experience.2 We are hardwired to be skeptical of information that differs from our own experiences. 

Most jurors believe that the world is a safe and moral place where actions have predictable consequences—and where good things happen to good people and misfortune to those who bring it on themselves.3 But this common and implicit bias directly conflicts with the goal of tort law: protecting the public. How can we overcome this tendency to blame the victim?4 In short, by creating empathy, which counteracts the reflex to blame others.5 So how do you build this into your case? 

Connecting With Jurors

Here are some basic steps you can take and things to keep in mind to make your visual case.

Seeing is believing. In the 1950s, renowned trial lawyer Melvin Belli’s working presumption was that “what a jury could see, a jury could understand.”6 Pictures are superior to words: Psychologist Allan Paivio conclusively proved that they are coded, stored, and retrieved more easily.7 Television, movies, and the internet have also raised the visual sophistication of modern audiences. Jurors now expect to see images in the courtroom.  

Appeal to jurors’ morality. Washington state trial judge Catherine Shaffer has distilled the core of what all jurors focus on when deciding liability: the underlying morality, not the legal elements. What is just? What makes them care? They want to know what really happened.8 Help jurors visualize the scene, and explain how the defendant’s carelessness caused the plaintiff’s injuries. Use the same crisp, visual shorthand of television news. This principle applies to every case and location—whether the injury occurred on a cruise ship, a construction site, or in a big box store.9

More than an “accident.” Defense attorneys love to use the word “accident”—it implies an absence of fault. After all, “accidents happen.” But the plaintiff bears the burden of proof to show that the defendant made conscious choices that led to the injuries sustained. Anchoring these choices to a physical location allows the jurors to become eyewitnesses to the plaintiff’s nightmare, which makes it real for them. And it also allows you to explain how it could have been prevented.

First steps. Multiple in-depth client interviews are crucial to beating a blame-the-victim defense. Show the client any photos and diagrams of the scene that you have collected. Using these visuals, review what happened step-by-step, and ask questions to confirm your understanding of how the incident occurred: Where were you? What were the conditions like? What did you see? What did you do?

If the scene is a public place, visit it with your client when few people are around. If the events occurred on the defendant’s property, make a Rule 34 motion to gain access to inspect the property. Opposing counsel will want to scrutinize your every move while you’re visiting the scene, so ask the trial judge for private time with your client.

To overcome any arguments that it was “only an accident,” highlight the defendant’s conscious choices and bad behavior—like a director always frames a shot for maximum audience impact. Remember that your visuals have two fundamental purposes: explaining what really happened and why it was the defendant’s fault. Your experts will supply a significant part of the liability rationale, but your client’s account of what happened is the foundation of your case. Focus on how best to help the jury visualize it.

A Case Study

Ray, a diesel bus mechanic, was working the graveyard shift at a county transit station. On his way back to work from his meal break one night, he drove his truck to the gas pump area to put air in a tire and talk to a coworker. As he was exiting his vehicle, a county motor pool van drove directly toward him. With no time to get out of the way, Ray was pinned between his truck and the van, suffering multiple orthopedic injuries to his right shoulder and arm. He underwent several surgeries and months of rehabilitation before returning to work with physical restrictions.

The official report attributed fault to the worker driving the van, who had two prior on-the-job crashes. Like this crash, the prior incidents were determined to be “preventable,” the result of the coworker’s negligence. But the county government’s risk management arm tried to blame Ray. It denied his workers’ compensation claim, reasoning that he was not covered on his meal break, which forced Ray to sue his employer. The county then argued that Ray was not authorized to be in the gas pump area with his own truck when he was hit, although no published rules or signs were posted supporting this. The county also argued that having his truck in the area violated its employee code of ethics and the union agreement.

The defense medical examiner (DME) also claimed that Ray failed to mitigate his damages and that his injuries were not as debilitating as they were. Ray’s previously outstanding annual performance evaluations abruptly changed to substandard ones, and seven months later, the county’s personnel department began taking steps to fire Ray for being unable to perform his duties as a diesel bus mechanic.

Ray received a certified letter from his supervisor informing him that his sick leave benefits were exhausted, and that he was being placed on unpaid leave. The letter also informed Ray that due to his physical restrictions, the county would move to terminate him for being unable to perform his work duties.

After several discussions with Ray about the events leading up to his injuries, I filed a Rule 34 motion for entry upon land to inspect the county transit base, which the defendant controlled.10 Planning to use this visit as the foundation of our trial strategy, I also asked the court to allow my graphic artist to accompany me without defense counsel present. This motion was also granted.

At the scene, Ray retraced his steps that night, showing us the exact location where he had been hit. No signs were posted indicating this area was off limits or restricted in any way.

Fig. 1. Rule 34 Inspection Photo of Injury Scene

Fig. 1. Rule 34 Inspection Photo of Injury Scene

 

Ray then stood next to his truck and showed us how he had been hit and pinned by the van.

Fig. 2. Rule 34 Inspection Photo of Client Modeling Body Position at Impact

Fig. 2. Rule 34 Inspection Photo of Client Modeling Body Position at Impact

 

Seeing my client demonstrate what happened to him at the scene deepened my understanding of the events, particularly how his shoulder and arm injuries had occurred. It also made it clear that there was no way he could have avoided being hit.

Create targeted liability visuals. The photo of the gas pump area refuted the defendant’s claim that Ray was in a restricted area when he was hit. But you need more than photos of the scene to overcome a blame-the-victim defense. To help jurors fully visualize the incident, you must use computer-generated illustrations, information graphics, and animations. By building on the photos and focusing on the most relevant and persuasive liability theories, these visual aids can demonstrate the defendant’s conscious choices and the harm they caused the plaintiff.11

In Ray’s case, for example, I wanted the jury to see just how visible Ray had been to the coworker before he drove the county van into him. The animation showed that had the coworker been paying attention, he would have had plenty of time to see Ray—and plenty of time to stop. It reinforced the coworker’s negligence.12 

Fig. 3. View of Coworker Prior to Hitting Ray (animation still)

Fig. 3. View of Coworker Prior to Hitting Ray (animation still)

 

Conscious choices. After illustrating the coworker’s negligence, I then used visuals to expose the county government agency’s carefully orchestrated campaign to wrongfully blame my client. Depositions of various agency officials uncovered all the details, but testimony alone often is insufficient to convince jurors that a defendant’s actions are deliberate, tactical decisions. For greatest impact, I condensed all the defendant’s actions into a single visual.

Think long and hard about the right image to use as a backdrop for the visual. In this case, my graphic artist and I agreed on a hostile-looking man with his arms crossed; it was our virtual scorecard of everything the defendant’s managers and other employees had done to Ray after he was hurt.

Fig. 4. Defendant's Post-Injury Attempts to Terminate Ray

Fig. 4. Defendant's Post-Injury Attempts to Terminate Ray

 

The trial judge allowed this image into evidence, and we displayed it during major parts of the trial. One by one, at trial, all of the agency’s managers admitted in front of the jurors what they had done to Ray. While these same managers had been comfortable sending threatening letters to Ray about his impending dismissal in the months before trial, they did not like being questioned about their actions in front of the jury.

Conveying the plaintiff’s injuries. The DME, an orthopedist with an impressive resume and a history of both criticizing treating doctors and minimizing the nature and extent of injuries, significantly underplayed the gravity of Ray’s injuries. The DME claimed that despite Ray’s injuries, surgeries, and limitations, he had a full range of motion in his arm and shoulder with no significant tenderness or instability. He also alleged that Ray had not made a full effort to recover from his injuries, despite the multiple comments in the medical records about Ray’s determination in physical therapy. In a pointed personal attack, the DME said that Ray’s pain symptoms were not the result of physical injury but rather the “result of a learned and patterned response on the part of the patient and his musculature”—implying that Ray’s injuries were not real. The expert also blamed a subsequent right shoulder surgery on Ray’s failure to rehabilitate following the first operation.

While Ray’s health care providers all disputed the DME’s claims at trial, I wanted to give the jurors a front-row seat to this traumatizing event so they could viscerally experience the force that had struck Ray. Using computer animation, I showed them that Ray was literally run down by the van, just like a pedestrian, with nothing to protect him from the force. The animation was created using data from the defendant’s investigation report and my accident reconstruction expert’s findings. Rather than taking the doctor’s word for it, the jurors used their own sense impressions to conclude that Ray had been hit with a devastating force—and then pinned between the van and his truck. After jurors saw this animation, the DME’s attempts to minimize the crash were not credible. It was no longer a battle of words.

Fig. 5. Ray is Hit by Van and Pinned Against His Truck (animation still)

Fig. 5. Ray is Hit by Van and Pinned Against His Truck (animation still)

 

Bringing it all together. At trial, we subpoenaed supervisors and managers as hostile witnesses, and the details of the defendant’s campaign to fire Ray systematically unfolded. The graphic image that we used to represent the defendant worked as a virtual scorecard of misdeeds that implicated every single one of the defendant’s managers. Though the county tried to buff him up for the trial, the coworker who drove the van into Ray came across poorly, particularly when confronted with the computer animation. He was unable to explain why he had not stopped long before the actual impact when Ray was so clearly visible.

The computer animation anchored our argument—the jury had a basic human reaction to seeing Ray get run down, particularly when he wasn’t doing anything wrong. It exposed that the county was trying to avoid paying for Ray’s injuries. The obvious force of the impact in the computer animation also justified Ray’s medical care and rehabilitation, making the DME’s claims lose all credibility. Common sense alone dictates that a pedestrian getting hit by a van at high speed is likely to have permanent injuries.

The human connection. It is human nature to be more sympathetic toward people we view as similar—and ­skeptical of those who seem different. To help jurors reject the blame-the-victim defense, present the clients’ story: who they are, their hopes, and their fears. This is not an appeal to sympathy. Rather, you are allowing jurors to connect their own humanity with that of your client.

Prior to trial, I spent considerable time getting to know Ray and his wife. I picked out some images from their photo albums that my graphic artist then used to create a series of panels. Each one had a theme. One focused on his family before his injuries.

Fig. 6. Pre-Injury Photos of Ray and His Family

Fig. 6. Pre-Injury Photos of Ray and His Family

 

The testimony of Ray, his wife, their family, and their friends all centered around these images during the damages phase of trial. The photos gave the lay witnesses a reference point, helping them overcome any nervousness in court and prompting greater specificity and genuine emotion. I asked the witnesses to tell the jury stories about the active life Ray led before being hurt, always establishing that the last time they had seen Ray do these activities was prior to his injuries. I let Ray’s treating doctors and my vocational expert highlight Ray’s physical limitations and their impact on his work and personal life, using some of the same pre-injury photos to frame the lay testimony. In addition to returning the exact amount of damages we asked for in closing ($1.5 million), most of the jurors stayed to talk with Ray and his wife after the verdict was read and the jury was discharged. 

In the age of juror bias, be a visual advocate for your client. Seeing is believing, so build your liability case like a film director or TV news reporter: Go to the scene and create visuals that show your client’s side of the story. And make it ­personal—that can make all the ­difference.


William S. Bailey is a professor at the University of Washington School of Law in Seattle and a former trial attorney. He can be reached at billb6016@gmail.com. Copyright © 2017 William S. Bailey.


Notes

  1. James Boswell, The Life of Samuel Johnson 164 (David Womersley ed., Penguin Books 2008) (1917). 
  2. Jerome S. Bruner & Leo J. Postman, On the Perception of Incongruity: A Paradigm, 18 J. Personality 206 (1949), psychclassics.yorku.ca/Bruner/Cards; Muzafer Sherif et al., Assimilation and Contrast Effects of Anchoring Stimuli on Judgments, 55 J. Experimental Psychol. 150 (1958), brocku.ca/MeadProject/Sherif/Sherif_1958b.html
  3. Juliana Breines, Why Do We Blame Victims?, Psychol. Today (Nov. 24, 2013), www.psychologytoday.com/blog/in-love-and-war/201311/why-do-we-blame-victims
  4. William Ryan coined the phrase “blaming the victim” in his 1971 book of the same name, identifying it as a primary mechanism used by white people to justify racism and social injustice in the United States. William Ryan, Blaming the Victim (Vintage Books 1971). 
  5. Daryl Cameron et al., Empathy is Actually a Choice, N.Y. Times (July 12, 2015), www.nytimes.com/2015/07/12/opinion/sunday/empathy-is-actually-a-choice.html
  6. Melvin Belli, Ready For The Plaintiff! 7 (Holt 1956).
  7. Allan Paivio, Mental Representations: A Dual Coding Approach (Donald E. Broadbent et al. eds., Oxford Univ. Press 1966). For an extended discussion, analysis, and presentation of these visual advocacy techniques, see also William S. Bailey & Robert W. Bailey, Show The Story: The Power of Visual Advocacy (Trial Guides 2011). 
  8. These quotes are from an interview I conducted with her on July 20, 2016. 
  9. If the event occurred in a public place, such as in a big box store, scene access generally is not a problem. Even so, you will have to exercise discretion so as not to compromise attorney-client privilege. If your client was injured in a location not open to the public, such as on a cruise ship, you will have to make a Rule 34 motion for access after filing the case, with a provision guaranteeing the ability to consult with your client privately when you make the inspection of the scene. If the event happened at a construction site, you first will have to get full discovery from the defendant and subpoena photos, plans, contracts, and emails from all those involved in the project.
  10. Made for purposes of documenting the scene where an injury occurred, these motions are almost always granted. A successful Rule 34 motion requires little else other than setting forth for the judge what happened, where it happened, and that the area sought to be inspected is where the event occurred. Usually, nothing about the scene itself gives a defendant valid grounds for objection, such as confidentiality, trade secrets, or security concerns. However, certain corporate defendants—such as big box stores and cruise lines—are notorious for resisting access. If you have not sued a particular entity in this category before, network through AAJ or your state trial lawyers organization to get copies of pleadings from other cases that demonstrate the pattern of resistance to discovery. This will allow you to put the response from opposing counsel in context, telling the judge, “This is what they always do.”  
  11. See Bailey & Bailey, supra note 7, at 187–207, 215–51.
  12. The computer illustrations in this case were prepared by Aaron Weholt of Legal Media, Seattle; and the computer animation by Jason Steele of Kirkland, Wash.