Debunking the Neuropsychological Witness and Injury Case

"loss of economic advantage" (which rely primarily on the peculiar talents that the individual happens if the particular jurisdiction allows recovery beyond these traditional elements for sortment itself varies the most when counsel turns to cross-examination. it should discriminate between these two trial elements, damages will succeed in driving cross-examination system for insurance defense counsel. the chart can be obtained for $4.00 from q. you do not have a degree in that field, do you? c. credibility immediately preceding and after the event. next, it is necessary to assess the glascow coma closing) how bias, selective memory, and innocent misrecollection influence the accuracy must use a style of cross-examination appropriate to the circumstances. if the jury believes time on damages during jury selection causes negative perceptions about the liability defense. q. have you written anything that was peer-reviewed by a licensed physician or see chapple v. ganger, 851 f. supp. 1481 (e.d. wash. 1994). q. so you have made your assessment in this case based on a system and manual conclusion again, a sample cross-examination might proceed as follows: e.g., the expert who makes more money testifying than practicing his or her profession; the what is a brain injury case? a neuropsychological injury? a mild or moderate head accident. defense lawyers, by nature, tend to focus on the tangible elements of damages sibility to zealously represent the client, a cross-examiner at least must attempt to show that q. anyone who needs someone to testify to this particular belief knows you can medpsych also can be retained to q. how many hours each month do you spend on litigation work? � neuropsychology is not a recognized medical discipline, and expert witnesses this, to first complain of pain on the witness stand rather than complaining of q. for how many years have you testified as a retained witness? evidence heard from the witness stand. with the exception of emotionally fragile jurors � histrionic personality? the diagnosis. these should be covered as well in cross-examination and can include: the plaintiff's "lost wages" claim, has found him or herself unexpectedly fashioning an "off neurological damage and psychiatric sequelae as a result of trauma to the brain, regardless magazine. she has been listed as one of the top fifty female do not fail to recognize that the manner in which the liability case is tried will impact the jury and the outcome of trial as well. for this reason, these topics are also addressed. scientific dimensions.3 � prognosis opinions lack sufficient detail and specificity to have meaning or value for confirming or disputing income losses. however, the damages search should not cease pain to you right after the accident? a: yes. q. in the field of psychiatry, a differential diagnosis is used, is that right? lawyer is almost as important as the credibility of the client. if the lawyer loses credibility in plaintiff should not be overlooked by defense trial counsel throughout this process. those worse yet, too many defense teams accept the record excerpts furnished by plaintiff's ration and trial of complex commercial cases and catastrophic patient recovers within one year of the injury. thus, there typically is no change in employ- methodology is also productive: that disabled means moribound. curacy). there also is a substantial body of scientific evidence indicating that the chances of example, disclosed a person who described himself as an entertainer/actor (which created debunking neuropsychological witness and injury case brain injury can be predicted. if the score on the glascow coma scale lies within the range one unwary defense lawyer, otherwise brimming with confidence over a plan for destroying neuropsychological injury claims are made by persons who assert that they have suffered that the plaintiff will formulate and provide his own response, usually in a multiple choice jury instructions. q. your course of study focused on the many disputed theories? but no one theory 185 commercial litigation (2004, 2005), and by the best attorneys network in illinois in the can be found in many disorders. though a lack of consciousness is not dispositive of a fdcc quarterly/winter 2008 attitudes and that tendency often permeate every aspect of the trial. in that regard, failing jurors invest themselves in a single trial attorney's credibility. while many would argue q. how many patients do you see per week? � education? plaintiff's expert? answer: there isn't any substance, and defense counsel's goal is to psychologists of their extreme cognitive impairments have been found to have subscribed � pain? focus solely on attacking liability issues, while waiting until the end of the trial to change q. isn't it also true that a different version of the same test will generate different of the plaintiff's life before the injury to determine the extent to which the plaintiff can still the witness be complimented for his or her excellent memory? since it is a lawyer's respon- 180 and also in spond, do you? impact and efficiency while keeping the production small. it is also important to choose all jury as well. sometimes these subtle gestures are just as effective as lobbing a grenade. a production should seek a copy of the hard drive of any personal computer or laptop computer lawyers who tend to obsessive detail must realize that if they do not make their points and behavioral. somatic changes are physical in nature and include photosensitivity, double defense counsel usually has exhausted so much time and energy implementing the liability this portion of the test to the plaintiff. the flaws in these tests are several. high-risk undertaking. counsel runs the risk of communicating to the jury that the witness's amnesia is the most important diagnostic tool for the simple reason that the brain cells despite their best intentions and efforts. each juror should be questioned about whether he disagreement among psychiatrists are nearly equal to the chances of agreement. therefore, discarded, they are freely available to third parties. point. then continue the questioning: the medpsych document referenced above highlights the limitations for each individual � factitious disorder? that is not well-accepted and has not been scientifically validated, isn't that inspired by a seasoned trial counsel's remark, addressing the difficulty of encountering the see jay ziskin, ph.d, ll.b., coping with psychiatric and psychological testimony 307 (2d ed. furthermore, the depth of a juror's fundamental attitudes about aiding an injured in fact by sexual activity. tests before the occurrence? fronting the star witness, it is important that the cross-examination remain in character. in course in physics, engineering, or biochemistry, with no ability to ask questions. and they can alter juror sympathies so that jurors tend to dislike the professional witness and favor exhaustive preparation, counsel must be cognizant of the jury's perception of courtroom mistakes is the failure to issue requests for supplemental records from all service providers, 183 q. you don't know if the plaintiff was prompted or given second chances to re- � the professional witness. jurors generally believe that lawyers and paid profes- q: and you would also agree that the textbooks from which you teach are authori- of trial what is improper and will not be permitted to form a basis for the jury's decision � the "bait-and-switch" technique. most experts are aware that an "authoritative" larly, it is important to research the organizations in which the witness claims to hold board injury condition. too many lawyers fail to construct an adequate game plan because they used by a plaintiff post-injury. for a small sum, the hard drive can be copied and searched for as taxed by the efforts of a single individual to gain their trust as they are by the advances for a plaintiff's future treatment or recovery. debunking neuropsychological witness and injury case properly maintain that focus during opening statements. however, some early effort must evidence can provide significant insight into the jury's likely approach to the defendant's personal habits, the jury is less likely to "restore" him to something more. interest, risk-free investment vehicles. rhetorically, if the experts do not do so, why should � age? based on the emotional impact of plaintiff's injuries, is likely if certain issues are not ad- negligible sum. ing the question of monetary awards and the nature of "courtroom money" with prospective the testimony was immaterial or unworthy of belief. q. if there are mathematical errors, these misrepresent plaintiff's condition on that or the other side; or the expert who argues with the cross-examiner. jurors tend to enjoy case, the manifest safety of the defendant's product, or the reasonableness of the defendant's 1 q: wouldn't it be unusual for a plaintiff, who was injured in an accident such as of neuropsychology among its members and does not offer board certification in that field. q. you are not board certified by the apa? impaired individuals; and the like. given the widespread innovations directed to individu- q. in fact, you have testified for plaintiff's attorney before? style 2. do not turn a two million dollar case into a twenty million dollar physical restrictions" (although this is becoming less common in the age ofadaregulations), each of these damages elements with foundational evidence and cogent reasoning, his or � stressors? regarding authoritative sources): for a general discussion see gregory t. jones, lex, lies & videotape, 18 u. ark. little rock l.j. 613 total hip implant had fractured. the defense theme was: "even god cannot make hips which tales are historically pervasive. damages inquiry and education during jury selection, if perhaps the most common defense damages blunder occurs in the failure to realize or and those who are seeking "for cause" excusal, nearly every potential juror will profess an to irving younger's ten commandments of cross-examination than a more experienced a. yes. expert is smarter than the lawyer. keep it simple. the same trap can be set by a neuropsy- cross-examination. so how can the case be won when the truth favors the opponent? what questions are intended for illustrative purposes; they are not intended to constitute an exclusive line of a minimum comprehension of medical and neurological knowledge is required to un- q. the plaintiff doesn't see one? q. did you verify the raw test data? (usually the witness will say yes) or chiropractic? date and time logs of their thoughts, feelings, interests and activities. a standard request for on the other hand, they liked lawyers who were: approach, counsel must be sure to address this issue with sufficient attention. response to subpoenas, many companies will produce payroll records, which can be valuable too many post-verdict reviews feature defense counsel who "run out the clock" on li- q. what were the plaintiff's levels or what was the plaintiff's status in the above mittee, not a scientific demonstration, isn't that correct? of clinical judgment and ratings, 119 am. j. psychiatry 251 (1962). insufficient experience to formulate a valid opinion. the more typical use of cross-ex- 5 admit that, in their careers, they had treated "god-given hips" that had broken. simple question, much of what otherwise appears as a major production can occur behind q. how about the malingering component; whose decision was it not to give that that the witness who has been termed a "liar" is actually an honest person, counsel will lose right?7 182 party. but they are even more offended if the lie is solicited by the adverse party or that style to cross-examine the psychiatric witnesses when a major brain injury is involved. in a survey of 5,000 jurors and potential jurors who entered the judicial system. the respondents q. isn't there a body of scientific and professional literature indicating that psy- trial strategy, little energy remains at the end of the game to muster an effective or credible in a maze of facts and figures. fdcc quarterly/winter 2008 elements of proof through cross-examination: fdcc quarterly/winter 2008 sight to realize that if large dollars are spent by the defendant, the defendant must be very that contributes to a client's good character. therefore, they can contribute to the credibility text can serve as a potent source of cross-examination. thus, the typical expert will avoid q. you also are not a neurosurgeon? medpsych new york, 310 east shore road, suite 100, great neck, n.y. 11023 or by phone (516-504- a damages theme of its own) and a w-2 form without any accompanying return. this infor- an obnoxious, abrasive cross-examination is a high-risk tactic. on the other hand, jurors party's attorney. furthermore, before unleashing full fury against a liar, be sure it is pos- similarly, a series of cases in which women had suffered pelvic inflammatory disease in preparing for the deposition of the neuropsychological witness, counsel must obtain q. the patients you do see (assuming any are seen at all ) come in and talk to � for the mild and moderate head injury, most patients return to pre-injury states by the plaintiff's witness actually offered the courses in the claimed field of expertise. simi- employment as a male dancer/stripper at the "sugar shack" in lake geneva, wisconsin. a fdcc quarterly/winter 2008 as acquiescence to plaintiff's damages claims. failing to establish early defense credibility failing to determine and shape jurors' attitudes about money and value is a mistake. it a neuropsychologist is neither a doctor/neurologist nor necessarily a psychologist. it verdicts. thoughtful preparation accounting for all factors that impact damages can tighten the ultimate point to be demonstrated is that the witness's foundation for his or her opinions is fdcc quarterly/winter 2008 choreographed dance. roles to be played in the courtroom vary from gentle questioner to angry advocate. the as- injuries suffered by the plaintiff. for example, in the case of a deceased family member, no her expertise and the scope of her knowledge may be willing to talk about an extensive in- points at this phase should favor common sense and practicality. in point of fact, no one on which the psychologist would know whether other treatments might solve a plaintiff's tion? were most impressed with judges and least impressed with lawyers. respondents indicated co-workers, and (above all) ask the plaintiff. then look to the resources available to help tive? a seasoned trial lawyer. the inexperienced lawyer will need to adhere more scrupulously experts carefully. using a $50,000 expert is likely to be viewed as a sign that $50,000 is a to absorb significant technical information. in some cases, they have been offered a short in simple terms, the dollar does not change its nature simply by coming into a courtroom. it is not difficult to become entangled in the emotions of the trial, losing sight of the fact � substance abuse? or swelling inside the skull, none of these manifestations is diagnostic of a mild or moder- q. can you explain then why there are mathematical errors in the data? 200 a. yes. proclamations of innocence. a successful global defense requires early recognition that the lawyers who have soft voices must realize that elderly jurors and judges may not hear on damages can infect the rest of the trial. failing to build damages credibility early in the a staged production of limited portions of the day. as such, it is not a fair representation of could explain current conduct; prove that. most psychologists or social workers claiming to be neuropsychologists are not these attitudes should influence the way cross-examination is conducted. it is clear that q. was this discussed with you before the short form was administered? given to identify a diagnosis. the witness's selection of tests has not been subjected to peer tion by berating and mistreating nice people, jurors will not be kind and they likely will not the game, the time when the opposition is most vulnerable and the fans are most attentive. thus, the initial step in any damages preparation is to review standard instructions in order to ing "other sources of income." past searches of such records for a plaintiff truck driver, for the basis on which to seek a reduced award or no award at all. naturally distinguish between liability and damages. while defense trial lawyers are trained their dislike of lawyers who: format. while most tests carry reliability scales, plaintiffs' experts often do not administer plaintiff brings to the marketplace rather than on any provable actual lost wages). that sur- nomic expert on minutia. the jury will be baffled by the exchange and will assume that the many defense counsel fear that jurors will be angered by surreptitiously acquired vid- in summary, after having thoughtfully considered appropriate jury styles, counsel's own q. isn't it true that a normal individual will have several abnormal scores? what to examine the specifics of the claimed injury. at this juncture, counsel must determine if review nor have the conclusions to be drawn from the particular battery been verified. some that light. him or herself of those resources. these can include college programs for the disabled to 9 of a lawyer's arsenal and communicate belief or disbelief not only to the witness but the q. what article reviewed by your peers recommends that particular battery of tests q. in fact, persons you treat don't necessarily have anything organically wrong injured and disabled individuals indicate that within a relatively rapid period of time, dis- than those with little or even no experience?6 textbooks from which she teaches, and the journals to which she has contributed articles. to the wall street journal, kiplinger's, and mac world, and to have received letters from jury may never get to that issue. this should be followed by questions that remind potential head injury population. believes that plaintiff has lied, is over-reaching, or is simply not a worthy person, it will � were dishonest (8%). as well. the following avenues are offered in the event they might assist in that effort. q. you are not an economist? of the game and can adversely influence an otherwise solid performance on liability. the witness by unduly lengthening the cross-examination. indeed, adopting an approach that 3. do not wait for the fourth quarter to play the game chologists with considerable experience are no more accurate in their diagnoses full of omissions, any one of which can demonstrate the cause of the present complaints. q. so he knows that you will always testify this way? q. what is a neurologist? two sources that carry extensive citation and establish the unreliability of any diagnosis 1. don't play the plaintiff's game q: isn't it true, doctor, that plaintiff sought no medical attention until after he was with a fancy presentation, they will indicate that big dollars are at stake. it takes little in- 178 which may be kept separately. signed employment applications may reveal attestations of "no 4 q. were any tests selected but then not given? why? q. you have three degrees (assuming a ph.d.), but none is in the field in which that jurors are highly influenced by what they hear in the first ten minutes of an opening in fact, however, there is no analytical data to support such a perspective, although anecdotal occurrence state; award in other ways as well. while it is crucial to have the proper staffing and undergo � engaged in theatrics (19%); id. at 312-13 [note: new edition to be released march 2008; can be ordered via amazon.com]; see also which may have little to do with the mental condition of the patient, correct? in particular, it is key to examining the neuropsychological witness that counsel obtain a. right. claims, disciplinary reports, or changes in life insurance beneficiaries (possibly reflecting to explain behavior either from side effects, overdose, or medication effects; q: and you would agree, doctor, that the journals you use to remain current are q. but in this case, you did not issue an opinion of a differential diagnosis, is that appeals. this commitment can be invoked later, with some reminder of accountability, evidence of contact with the head or brain following an event? the response follows the case in general. potential jurors who profess difficulty in putting aside sympathy for the the organizations that do offer board certification are of recent vintage (the last ten years or some consideration to the style of the questioning. professor wigmore has been quoted there is a substantial body of scientific evidence demonstrating that psychiatric diag- 197 the reader is referred to other literature for further explication regarding those medical and results? q. usually your patients have some type of personality maladjustment or inter- "pain and suffering," and "disability and disfigurement," will leave the defendant only a the neuropsychologist is not a doctor and cannot prescribe medications or treat the � narcissistic personality? even in those instances where the defense will strongly dispute the existence of any test and provides annotations to scientific articles that support the noted limitations. the "sick role" in order to obtain care, concern, treatment and attention. a factitious disorder b. understanding oneself ally short-term, safe treasury bills), which they term "risk-free," are so conservative that research corporation as a "leading illinois attorney" in thinks of himself as passive and friendly. when that lawyer invades the space of a witness by trained to be clinical neuropsychologists. the weaknesses of such a witness fall into four beyond this tactic, be wary of the natural compulsion to parry with the plaintiff's eco- closely approaching that witness at trial, he should know that this will be viewed by the jury 1970). you claim to be an expert today, is that correct? q. you saw plaintiff once? q. did you discuss all the tests in your report or did you omit any of the tests? comes time to opt for the cross-examining attorney or the elderly widow, the juror is going with them, isn't that correct? or litigation, there is a high rate of delayed recovery when compared to the average mild (medical bills and lost income), leaving ruminations about ill-defined subjective elements that plaintiff is suggesting big numbers to confuse the issues. q. what text books did you use in college to learn neuropsychology? � effective (18%); as the comparatively termed "normal" population. the defense must disavow the notion chological diagnoses are not very reliable and not very accurate? � failure to consider and evaluate medication taken before and after the occurrence prescribe a monetary award for each. unless counsel has planned a strategy that addresses (only ask the following additional questions at deposition in order to obtain information q. some tests require the examiner to interpret the response, isn't that right? complicated damages argument. player against each opposing team member. likewise, every sound game plan begins with a: yes. q. you are not a vocational expert? plaintiff is hurt, so someone must pay." indeed, more than a few strong damages cases have thin argument against such damages and therefore can be costly. to forebear the question of damages until the plaintiff has satisfied its burden of proof on q. the disorders in the dsm are defined by compromise and agreement by a com- is absolutely safe. "absolutely safe" and "risk-free" are not phrases typically included in human behavior? q. you are familiar with the diagnostic and statistical manual? what version do the normal progression of healing, isn't that correct? will have less success enlisting the aid of a judge in controlling an unresponsive witness than of numerous suitors. q. and you have published your beliefs in this area as well? whether the plaintiff has suffered an open cut, a skull fracture, a bruise, swelling of the skin most recently formed are the first to be injured in a trauma. if there is no amnesia for the been lost by defense counsel's failure to recognize the need for clear lines of demarcation. inaccurate baseline. if the plaintiff's "normal" lifestyle was diminished by his or her own psychiatrist. of "no further treatment" should not be taken as definitive. last but not least, a plaintiff's a: yes. conveys the message, "this witness isn't hurting me," may be the best. consider the follow- problems include deficits in memory, concentration, thinking, mental fatigue, problem solv- � knowledgeable and experienced in the law (10%). the remaining schools rarely even offer classes in neuropsychology. nor is there any state liability and focusing instead on causation and damages. nearly all of the adverse gynecolo- ing, perception, judgment and communication. behavioral consequences include depression, q: because that's what you believe? of inexperience. � demonstrate the expert had insufficient basis, insufficient credentials, or � passive-aggressive disorder? the witness's transcript of classes taken and a list of the schools attended to gain access to witness and injury case learn a valuable lesson from fictional private investigators, who never have a problem "go- trappings. in this regard, it is important to ask, "what is the jury seeing?" by asking this it cannot be said that psychiatric evaluations can be made with reasonable certainty5 brain injury, the finding of amnesia is dispositive of such an injury. if the amnesia is less liability theory of the case. a long time is likely to pass before the defendant again has an a: yes. to do so in the area of damages is foolish. by the end of a trial, the jurors have been asked process that required a halo, wiring and cervical fusion, had undisclosed post-accident chances to avoid an uncontrolled outcome. eotape of the plaintiff. in reality, this appears to engender much less cause for concern than � demonstrate that the adverse party is unworthy of the jury's award. if a jury fail to lay the foundation indicating what the plaintiff's "normal life" looked like before the don't fracture. man can't do better than god." it was a fairly simple theme to develop on because their judgment is often guided by a pep squad. at trial, defense counsel must per- 193 q. and mild brain injuries clear their symptoms within one year? families to feed and mortgages to pay, do not dedicate their personal portfolios to these low dressed in the initial phases of voir dire. many defense counsel fear that spending too much 192 in response, it is increasingly important for defense counsel to become comfortable discuss- the scenes. in the hands of a practiced user, modern technological courtroom tools enhance house library, the number of journals to which she subscribes in order to remain current, the to account for the impact of damages on the entire case can lead to large and uncontrolled this same philosophy can be applied to trial strategy. jury consultants universally have found diagnostic errors can relate to other issues in the particular case as well and should be witness who has lied to someone outside the courtroom and a witness who has lied under q. do you perform a differential diagnosis on every one of your patients? the greatest lessons are learned by heeding the reactions of non-lawyer friends (and many lawyers fear. jurors welcome information that reflects a stark contrast between what is these claims. it provides sufficient information to enable counsel to establish the following see frank r. freemon, m.d., organic mental disease, ch. 7 (1981). many basketball coaches emphasize the critical importance of the first five minutes of form a similar function, helping the jury recognize when to cry "foul" and when there is any evidence, that even though they are hearing much discussion about money, the defendant introduction q. how many cases have you done with the plaintiff's law firm or other plaintiffs' q. you don't know what clarifications were provided, do you? when arguing damages, it is essential to determine a baseline for the plaintiff's pre- because the witness is key. likewise, if possible, counsel should not draw attention to the tility of a dedicated bond portfolio and the lack of any hedge against inflationary pressures. see p. ash, the reliability of psychiatric diagnosis, 44 j. abnormal & soc. psych. 272 (1949); r.j. or she could withstand the pressure of others to do the same. regardless of the particular a. yes. � present evidence which inclines the jury to favoryour client. while witnesses serious injury? can the injury be objectively diagnosed? these questions must be considered meet the plaintiff's life goals and ascertain whether the plaintiff took any steps to avail q. all of your patients have some abnormality? documents that impacts damages. helpful material often is found in the w-2 statements, the witness is a liar; such lack of credibility must be apparent from impeaching testimony, concerned about the plaintiff's case. each of these tactics can adversely impact the damages with those documents. often, more valuable information is contained in personnel records, podge of issues that rally the sentiment, now dominant in contemporary society, that "the personal difficulty, is that right? examination of the neuropsychological witness. the style used to do so will have impact on q. that is because such "talk therapy" is not a cure for a mild brain injury, isn't performed in the pending case about which counsel has done sufficient study to maintain akin to walking off the court before the final buzzer sounds. in addition to the lack of accuracy in the studies, other topics can be used to question f. computer detail advocate. on the other hand, jurors tend to cheer the younger, less-experienced lawyers. fdcc quarterly/winter 2008 firms? q. you cannot do surgery on patients? however, they believe that lawyers hold all the cards on cross-examination. thus, when it as a 2006 and 2007 illinois "super lawyer" in the field of sional witnesses occupy the same status in the courtroom. a skilled examiner sometimes abled individuals function with the same levels of satisfaction with life and its challenges opportunity to address damages with the jury. nevertheless, the jury will remember that "unworthy" theme. one way to proceed is through the cross-examination of the treating � prognosis opinions do not match the statistics for recovery rates of non-litigious q. did you write any peer-reviewed article validating the combination of tests you by others. thus, a large male lawyer with a booming voice will do himself a disservice if he q. if the plaintiff had questions, who clarified the situation? q. did you give any tests that measure for the same thing to see if the result was d. surveillance questioning on prognosis could look like this: q. you are not a rehabilitation expert such as a physiatrist (an m.d. skilled in as- d. neuropsychology opinions about prognosis are unsubstantiated 6 field of neuropsychology itself. one of the most costly mistakes the defense can make. discovery must focus on all aspects how, then, does one know if a plaintiff's complaint is legitimate when there is no d. cross-examination style tailored to case goals word of caution, however: do not accept a plaintiff's unsigned or uncertified copy. send a 2) diagnostic errors; � language/vocabulary? physical or cognitive functioning. if they are relatively benign, or if the film requires the jury there is about as much chance that the psychiatrist will be incorrect as there is that he will financial motive; (2) a marked discrepancy between disabilities and objective findings; (3) 201 7. keep it simple the parameters on adverse awards and keep defendants in the game. 4. cover all damages of the trial, including moments of later direct examination and closing argument. the lawyer � manual dexterity? alternatives. complished defense trial attorney, but counsel cannot afford to avoid this challenge because factitious disorder is the manifestation of symptoms whereby the complainant assumes a q. you do belong to some professional organizations? 4) prognosis conclusion flaws. since 8600). counsel, making it appear that the diagnostic tests are valid and the witness is knowledgeable. in order to question the expert about the science and principles referenced throughout this the medical and scientific literature documents that the mild and moderate head injury lori e. iwan actions. delicacy in dealing with difficult matters, however, is the peculiar realm of an ac- license or testing requirement, correct? lori iwan's practice is concentrated in the evaluation, prepa- 5. bring all the facts to the courtroom her closing argument will present the jury with no understandable basis on which to deny a the spectators at a basketball game quickly learn to yell "shoot," "foul," and "defense" in advance of trial and intentionally constructed through the evidentiary phase of the case. plaintiff in any manner unless he is licensed as a psychologist. therefore, the "limits" on any q. you cannot prescribe medication? would the plaintiff's abnormal scores have been if the plaintiff had taken the q. there is no state license for a neuropsychologist in this state, correct? 7 and union records may reveal otherwise undisclosed jobsite work during periods of claimed background and experience, to manage their money is a simple one that will not be lost on plan for the full scope of awardable damages that the jury would likely be asked to consider. may be fully prepared to argue why the plaintiff has no "disability or disfigurement," what discussed in detail below. clear long before the jury retires to deliberate. outbursts and feelings, while understandable and emotionally driven, are manifestations of a lack of cooperation when taking tests and following treatment; and (4) the presence of an numerous other issues. and focused discovery on those permissible elements of damages. similarly, while counsel syndrome: hold the concussion, for the def., july 1998, 35-39. ity; universally designed homes to live independently; clubs that schedule activities for the neuropsychologist is ready to proceed. be correct. the diagnoses are therefore speculative and conjectural. ages arguments tend to conclude the trial. thus, while the beginning of the trial is of great q. sir, who selected the battery of tests that were given? credibility. likewise, if the jury believes that counsel has taken advantage of cross-examina- within one year of the injury, minimizing the need for future expenses or care. fdcc quarterly/winter 2008 details and being untruthful about essential facts. further, there is a difference between a it is the former, not the latter, that defense counsel seeks to prove in order to defeat a claim field of commercial/business litigation. this article addresses the medical and neurological knowledge necessary to defend many times for his statement that cross-examination is the greatest engine ever invented by fdcc quarterly/winter 2008 going to need money now!" or, "no amount of money could ever be enough for me to give the need to approach this subject at the beginning of a trial is a delicate matter, espe- � overstating test results to support conclusions that serve the purposes of the oath to the jury. jurors take greater offense if a witness lies to them rather than some third noses and evaluations are seriously deficient in both reliability (stability) and validity (ac- no risk that the jury will perceive any invasion of privacy. nevertheless, videotaping should has been scientifically proven as reliable to a reasonable degree of certainty, of whether there was actual contact with the brain in the incident itself. this article was litigation, by the leading lawyers network in the field of debunking the neuropsychological plaintiff's injuries can have significant impact on the jury's overall perception of the defense assessing their ability to appreciate the facts on liability. it is not enough to simply ask the 177 � litigation? messengers there are, the greater the opportunity for message dilution. seek to have the � physical ability to sit for testing? analysis noted above. first, counsel must determine if there is amnesia for a period of time feel less inclined to reward that individual. there are a number of ways to advance this � failure to consider emotional problems instead of problems caused by injury; well-prepared, well-orchestrated, easy cross-examination can sometimes be as devastating the damages awarded. if counsel employ a large trial staff who engage a large production used in this case? q: isn't it true that the plaintiff did not see you again until right before his deposi- 8. do not concede the game your office? b. the neuropsychological witness makes diagnostic errors mation revealed that the plaintiff, who had sustained a hangman's fracture of his odontoid � neuropsychologists are not qualified to render causation or diagnosis opin- jurors, by and large, have no such natural predilection or understanding. this fundamental sources of income such as real estate (e.g., managing property on the side) and hobbies (e.g., head injury. for example, post-concussion syndrome can be similar to other syndromes, with that regard, the prototypical unsympathetic witness is an expert who makes more money earnings history in order to challenge the legitimacy of any lost income claim. however, up my sight." the trial experience does not deviate from this typical pattern. as advocates, expect lawyers to be advocates. they expect lawyers to raise information that will help q. you are not a doctor in any form of alternative medicine such as homeopathic b. employment records trial results in the loss of critical momentum. injury and property damage cases for a number of corpora- ferent result? debunking neuropsychological witness and injury case can be done with an honest witness who accurately recalls facts that are harmful? should (1) showed sympathy to the injured plaintiff; (2) visited the injured plaintiff in the hospital; � reading level? age population also will test abnormal? 196 179 � the untruthful witness. not every untruthful witness deserves the full panoply of e. garbage detail the following are some of the various goals of cross-examination. note that these goals response, eye opening, and motor response. each category offers five possible answers, and arguments. it is simply a matter of telling the jury early and often that the law requires them the same? debunking neuropsychological witness and injury case the means and methods to develop a complete picture of a plaintiff's life lie easily web site design, jewelry design, bookkeeping services). certification in order to learn the history and origin of the organization. statements on the ciation of plaintiff's significant loss. however, such statements might be quickly followed accomplish pre-occurrence goals. merely accepting plaintiff's claim without challenge is the cross-examiner. this is particularly true when dealing with the "all purpose expert," derstand the predominant flaw when plaintiff's counsel pursue mild and moderate closed q. that is not how you treat and diagnose your other patients, is it? q. the differential diagnosis is based on 5 axis to be identified? ness emotional outbursts during the trial (crying, anger, outward signs of grief and loss) q. sir, you are not a doctor? of brain injury and damages. are especially useful to contradict plaintiff's use of a "day-in-the-life" film, which is usually fully appreciate all damages elements that might be allowed within a given jurisdiction. brain injury: an introductory course q. why is it important to do a differential diagnosis? ing through the trash." anecdotally, plaintiffs who have convinced well-qualified neuro- q. you didn't recommend she see one? iii. � talked too much (10%); and q. you are not a psychiatrist? or discover that their hearts go out to the injured plaintiff or surviving family. but these witness. questioning. the reader is cautioned to tailor the questions to the facts and particularities of the case. tative? before moving into substantive questions regarding the claim, counsel should give simply not credible. with the vast resources of the internet, idex, references in records to (1996); egelhoff v. holt, 875 s.w.2d 543 (mo. 1994). person's life has ceased because of the disability. reliable, published studies of severely the scale measures three aspects of physical functioning immediately after the event: verbal authoritative? before the occurrence. armed with this background information, the cross-examination of q. what is the apa? production defense lawyers often tend to make damages too complicated during the cross-exami- advocacy and arrogance; unctuousness and charm. lawyers should be aware that jurors to choose the widow every time. that is good advice if the lawyer knows him or herself and knows how he or she is perceived � the "key witness" dilemma. how to cross-examine the adversary's "superstar" is distinct from malingering. malingering requires identifiable diagnostic criteria: (1) a c. flaws exist in the tests administered and interpreted by neuropsychologists witnesses and jurors who will otherwise feel intimidated by counsel. mother and father who lost an "angel." such a statement manifests the defendant's appre- see c. barry montgomery & bradley c. nahrstadt, advanced strategies for defending complex brain personality and experience level, and the facts and goals of the case, it is then appropriate an officer of the court in attempting to elicit critical information for their use in deliberating in fashioning a game plan for these amorphous damages, be careful not to lose sight of a. tax records 188 q. sir, you have not done any research to contradict these scientific studies have if the witness resists, of course, go through article after scientific article that makes this cross-examination because all of the orthopedic surgeons testifying for the plaintiffs had to even "non-trial" lawyers), who can be heard to remark, "i'll bet that person's family is really proceed as follows:4 the fields of products liability defense and commercial basic case preparation includes the production of tax returns to learn the plaintiff's prior patients as "injured." has now become commonplace for plaintiffs' attorneys to voir dire jurors on their individual a. yes. a. the neuropsychological witness lacks qualification to testify as expert licensing requirement for a neuropsychologist (who should not be confused with a clinical categories: questioning the witness about this issue might follow this approach: a. understanding jurors 195 such a display, it is human and acceptable to empathize with the person, but the display of adverse verdict. this practice recognizes the experience of trial masters, who have learned that first, the selection of tests follows no known or scientifically validated protocol. the there is, however, more to the defense than asking the right questions during the cross- male. the male will be more successful using a much lighter or softer approach. the trial lawyer is producer, director, and sometimes "star" or "goat" of a trial. the � dedicated to the client (16%); a. yes. jurors will not expect the defendant to pay money for a diminished lifestyle based upon an debunking neuropsychological witness and injury case them well; these lawyers should use a lapel microphone or learn to project their voices. within a radius where plaintiff received medical care, was employed or went to school), the man for the discovery of truth. for better or worse, however, truth is not always the goal of control of cross-examination. a. yes. nation of plaintiff's damages witness, who is usually an economist. defense counsel's best there is also some confusion and misuse of terminology surrounding a brain injury. quickly and forcefully, moving on to the next point, they risk losing the attention of jurors jurors that the courtroom is a unique place, often revered as a last bastion for truth. that as a trial lawyer it is important to know the audience. the losangeles courts conducted there are many articles that explain the science behind the mechanism of injury to the ridicule, anger, and hostility. there is a difference between being untruthful about irrelevant likewise, a younger, less-experienced attorney should realize that ordinarily he or she fdcc quarterly/winter 2008 fdcc quarterly/winter 2008 an understanding of what damages can be awarded and prepares a defense that anticipates obligation to treat the elements of liability and damages independently. this educational plaintiff these damages. failing to elicit foundational evidence during discovery and trial, ture of what was normal for the plaintiff before the occurrence. even the most sympathetic ship, does it? system of classification is too low to be used for individual diagnoses? 1) lack of qualifications; plaintiff's witness selects tests at random and then forms conclusions from the results. neuropsychological witness in a case where there is no head injury, or where there is mild validated, does not meet the daubert test of reliability as required for admissibility.10 the case through the crucible of cross-examination, the client will benefit. ultimately, the game plan evaluates the strength of each player on the opposing team and matches each 3 as a harsh and bitter attack. as winston churchill stated, "when you have to kill a man, it within counsel's reach: obtain records, interview family, friends, neighbors, teachers and article. if the expert disagrees with the principles explored on cross-examination, counsel � develop the theme and theory of the case. a series of cases occurred in which a emplaced. they further conceded that the vast majority of cases involving pid are caused q. doctor, you've testified before, have you not? consequently, it falls uniquely upon defense counsel to educate the jury regarding its debunking neuropsychological witness and injury case q. have you written any peer-reviewed article or book on brain injuries? to be acutely aware of the dichotomy between the "liability case" and the "damages case," debunking neuropsychological witness and injury case c. medical records in order to have suffered a legitimate mild or moderate brain injury following an event fdcc quarterly/winter 2008 am. j. psychiatry 759 (1970);a. t. beck et al., reliability of psychiatric diagnoses: a study of consistency q. sir, who actually administered the tests? gives economists money to invest--and for good reason. their preferred investments (usu- events immediately preceding the event, or more importantly, for a period of time after the however, regardless of duration, the amnesia must be present and permanent for a claim of assist in identifying flaws in the neuropsychologist's conclusions. q. it's no secret that you always testify in this consistent manner? q. nothing unusual about the plaintiff's injury suggests it would be different that the highs and lows of the plaintiff's normal routine. in this circumstance, there is virtually it is equally important to know the difference between courtesy and obsequiousness; is not responsible for the plaintiff's claimed losses. the defense also will suggest that the chologist armed with the vocabulary of his or her profession. such a witness can out-talk q. in fact, you are not even a doctor, are you? as a menacing and even hostile gesture. this lawyer must take care to mitigate his aggressive fdcc quarterly/winter 2008 indication that the identity of all medical care providers has been completely disclosed is psychologist). the american psychiatric association ("apa") does not recognize the field the same psychomotor slowing, impaired attention, delayed recall, disturbance of memory personal injury litigation. plaintiffs who use personal computers for entertainment are creating baldessarini, frequency of diagnosis of schizophrenia versus affective disorders from 1944-1968, 127 investors would never dedicate their portfolios in such a fashion, especially given the vola- mental condition of the person being examined? of one's case. thus, if counsel can elicit from a neutral witness on cross that the defendant: q. for those of plaintiff's traits that tested abnormal, what percentage of the aver- correct? expository damages argument. q. isn't it true that the same trait measured by different tests will generate a dif- q. you have not recommended that the plaintiff see you as her psychologist? but the most extreme injury case) to claim total inability when faced with actual, real-life debunking neuropsychological witness and injury case them perform their tasks. they expect lawyers to demonstrate on cross (and then explain in the focus to damages. moreover, if defense counsel remains silent, that silence is often taken (e.g., sympathy, bias, and prejudice). counsel must help the jury recognize when an improper the jury should feel comfortable knowing that it can empathize with plaintiff's loss without defense team has no excuse for defending damages with an incomplete medical picture of � fair and truthful (14%); and the obvious: "loss of a normal life" requires a predicate "normal" pre-morbid life, or a pic- q. in fact, you have not treated the plaintiff, isn't that correct? tions and insurance companies on a national basis. she also in those cases where liability will be the primary trial focus, defense counsel should emotion is not a measure of the facts or evidence on which the jury should base its decision. the cross-examination, it is nearly impossible to regain that credibility during the remainder a: yes. test? prise could have been avoided had counsel anticipated likely jury instructions in advance some would argue that defendants in significant injury cases begin the game in serious jay ziskin, supra note 6. litigation. � repeated themselves too much (14%); to infer what is not clearly shown, they produce greater harm than good. surveillance films correct? the jury accept their determination as "fair and reasonable?" keep in mind that most jurors v. help meet career goals or training for a new career; modified vehicles to enhance mobil- particularly health clinics and hospitals near the plaintiff's residence. a plaintiff's claim however, there is no scientific study or consensus as to which battery of tests should be q. you cannot hospitalize a patient? q. you cannot prescribe medicine to patients with mental illnesses? therefore, stay out of the witness's arena. adhere to known facts and those tests that were � were not prepared (15%); case. this recognition, combined with early planning, will greatly enhance the defendant's 202 the style chosen for cross-examination should depend on whether the witness is likely 204 to be sympathetic. it should be obvious that defense counsel must forego using an "attack" q. the plaintiff is not a regular visitor to your office? ions. inform the jury that the defendant appreciates and respects the scope of any devastating and ineffectively arguing against non-economic categories such as "loss of a normal life," the cuff" argument to defeat plaintiff's instructed claim for "loss of earning capacity" or forethought throughout the discovery process. while it is a relatively rote practice to file inter- there is a pervasive, yet vastly uninformed view among defense teams, that a disabled � medication? q. is it correct that test results can be skewed by: the neuropsychological witness disability. these records may contain other health-related claims, worker's compensation far too often, medical records are obtained from the date of the occurrence forward. typically, the tests administered to the plaintiff are self-reported in style, meaning debunking neuropsychological witness and injury case potential for gain or loss. it calls attention to the importance of the witness and is another an ordinary juror. email messages, internet trails, and chat room dialogue. these open a new avenue of informa- gists had to concede that they had treated women for pid who never had a dalkon shield 10 a: yes. you choose one version over the other? personnel; these may reveal significant pre-injury information that minimizes damages. of recovery to the plaintiff's lawyers. unfortunately, this tendency ignores the practical fact practitioners commonly fail to look beyond the return itself for other evidence in those tax debunking neuropsychological witness and injury case 3) testing and testing conclusion flaws; and treatment provided by the neuropsychologist are talk therapy, and consequently, the basis a: yes. are instructed to make damage awards based on what is fair and reasonable--not on what rogatories, submit a production request, take the plaintiff's deposition, and order a plaintiff's some jurisdictions add unique twists to these rather broad concepts. for example, more than exception of some six institutions, universities do not offer degrees in neuropsychology. true pre-injury baseline functioning or provable post-accident condition, defense counsel has q. to which journals do you subscribe in order to stay current in your field? debunking neuropsychological witness and injury case q. and you always testify the same way on this issue? and a subjective evaluation. finally, compare the plaintiff's pre-occurrence baseline behavior moderate brain injury. (a glascow score of eight and below is an indicator of a very severe foul trouble given the natural empathy felt by most jurors for the plaintiff's suffering. stay- business litigation by law & politics magazine and chicago the effect that the psychological interview is influenced by many factors which � neuropsychologists make diagnostic errors to the extent that they diagnose physician as follows: counsel, rather than obtaining a complete set from the service provider. high on the list of and spinal cord cases, 56 fed'n def. & corp. couns. q. 121 (2006); lee coleman, post-concussion is a certified mediator and arbitrator. ms. iwan was selected categories compared to the test population? 8 ate concussion or brain injury that could cause cognitive or behavioral problems without a behaviors is essential to provide a complete picture of what was "normal" for the plaintiff as legitimizing the field of neuropsychological injury, however, nor should the injury be apa website can be used to verify that neuropsychology is not recognized by the apa. c. tailoring cross-examination style for each witness and should only be used when they graphically demonstrate that the plaintiff is lying about q. hasn't the research demonstrated that the reliability of diagnoses based on that indeed, jurors frequently enjoy sharp, spirited exchanges between lawyers and witnesses. q. for example, the axis v diagnosis system lists stressors and physical health, injury to the plaintiff, learning jurors' attitudes about deciding the case on the law and the considered and developed for cross-examination as supported by the appropriate literature. the focus of this article concerns how to cross-examine the neuropsychological witness, is rare to find a credentialed physician practicing in the field of neuropsychology. with the admissible statements, or contradictory testimony. ments, seeing you again only right before this trial? key witness is a crucial determination. a long, aggressive cross-examination magnifies the process begins with jury selection and ends with the jury instructions that follow closing brain injury to be legitimate. have been told that there are two diametrically opposed ways of examining the applicable fdcc quarterly/winter 2008 testimony is so devastating that counsel will lose if such testimony is believed. when con- the computer age also carries with it sources of evidence previously not available in abrain injury can affect an individual in a combination of three ways: somatic, cognitive � the tests and administrative protocols used by neuropsychologists are flawed. costs nothing to be polite." testifying than practicing his or her profession. of testimony. debunking neuropsychological witness and injury case q. you are not the plaintiff's regular treating doctor or psychologist? injury is actually functioning normally behind closed doors. defense counsel can, however, q. isn't it true that there are many disputed theories of psychoanalysis to explain given this premise, a deposition or trial examination of the adverse witness might in combination with each other? admitting that any text is authoritative. however, an expert who is anxious to demonstrate it is always the greatest challenge to determine whether someone who claims a cognitive made "to a reasonable degree of certainty" can be found in the ziskin book,8 lawyer who has won the battle for credibility. it stands to reason that jurors are not nearly viewed as legitimate simply because the terminology suggests a mystery of the mind. 184 liability. thus, counsel should exercise care to make the line of demarcation abundantly failing to challenge the extent to which a disabled plaintiff can live a "normal" life is attitudes about and abilities to award "substantial monetary compensation" in the event of an cross-examiner can take the witness through each test and its flaws. questioning about the with each juror individually, eliciting a commitment to disregard such non-evidentiary iv. 203 for example, the jurors should understand at the first opportunity that they may wit- 189 debunking neuropsychological witness and injury case ability or employment history within one year of the injury. however, where there is a claim you? q: isn't it further true that plaintiff never complained of pain to you? most states allow recovery for past and future medical bills and lost income. however, defense counsel respects the plaintiff's losses and will consider the damages argument in psychiatrist? b. money q. what is board certification? 190 the jury is key to a successful defense of these cases. done well, it is much like a carefully who has the best lawyer," there is great truth to the thought that jurors tend to side with the question: how does one know whether there is any substance to the opinion of the other words, the lawyer cannot use more hostility than is appropriate to the situation just the credibility of the messenger has great impact on the message as well. the more � alcohol history? q. do you find something wrong in every patient you see? and concentration that are found with chronic fatigue syndrome. the manifest conditions (whether it is direct trauma, inhalation of fumes, deprivation of oxygen or otherwise caused), normal patients as "normal" more often than they are able to diagnose injured of this nature lack the education and training of a clinical neuropsychologist or jurors. further, it is universally the case that plaintiff's economists themselves, usually with the medical literature indicates without question that there must be a finding of permanent nearly every written advisal to trial lawyers contains an admonition to "be yourself." head injury, with a score of three being the lowest possible indicator on the glascow scale). seeing unsympathetic witnesses challenged on the witness stand. antisocial personality disorder. counsel should take care not to confuse the two disorders. resulting opinions. this goal is likely to be the most effective with the neuropsychological q. you do not have a degree in neuropsychology? disclosed medical records in an injury case, other potentially fruitful discovery avenues exist properly focused, can properly frame the overall merits of the defendant's case. amination when questioning a technical or expert witness is to demonstrate the flaws in the test, don't they? consequently, unless defense counsel carefully defines for the jury the manner by which understanding how to approach damages involves the recognition that jurors do not scale, which is found on virtually every ambulance report and emergency department report 194 with the words of rufus choate that "a jury consists of twelve persons chosen to decide � socioeconomic differences/ethnicity/status? the potential for a meaningless trial in which the jury has pre-determined the outcome, than twenty-four hours in duration, meaning that the person cannot recall what occurred � borderline personality disorder? i. expert who advertises his or her expertise; the expert who testifies exclusively for one side elements of "loss of a normal life" or "loss of enjoyment of life?" in every sport, a sound cially when defense counsel hopes to focus primarily on the flaws in the plaintiff's liability affect the conclusions that are drawn, but which have little to do with the actual q. isn't it someone who studies the brain and how it affects behavior? finding of amnesia. commercial litigators in illinois by leading lawyer's network analytical ignorance is not lost on plaintiffs' attorneys who do their best to create a hodge- q. isn't there a body of scientific and professional literature to the effect that psy- 198 during closing argument. if allowed, jurors should be questioned in light of the possibility � harassed the jurors and witnesses (12%); being claimed and what is occurring outside the courtroom. the films should not be edited be called upon to do so? successful defense trial lawyers begin by advising the jury panel, before they have heard brain, and identify areas of the brain that control various bodily functions. however, since must be prepared to cite the articles themselves. the resources cited are pivotal to counsel's als who are physically and mentally challenged, a plaintiff will be hard-pressed (in all after the witness takes this "bait," the examiner then can switch the focus as follows: case law suggests that use of a flexible battery of tests, where the battery itself has not been � failure to consider past medical records for pre-existing medical conditions that potential juror whether he or she can put sympathy aside and find for the defendant on the an excellent chart published by medpsych corporation.9 (pid) allegedly caused by the dalkon shield intra-uterine device was tried by conceding referred to you by his lawyer? presentation at the beginning of trial. indeed, some have suggested that jurors tend to fix q. the apa doesn't recognize your field as a legitimate field among its member- fdcc quarterly/winter 2008 191 � emotional disorders? defining sufficient evidence to support an effective damages defense requires proactive q: and certainly the journals to which you have contributed articles are authorita- ability to exclude sympathy from the deliberations. instead, this issue should be addressed q. you did not treat plaintiff? the lawyer is judged by the jury throughout the course of a trial. the credibility of the sentiments that are not compensable in the case. the jury must understand that when it sees particular approach adopted by counsel will be outcome determinative in the trial. sible to sufficiently expose the individual as a liar to the jury. it is not enough to believe of thirteen to fifteen during the initial assessment, then the patient has sustained a mild to q. i could be a neuropsychologist in this state just like you because there is no the plaintiff's description of his or her occupation, or in supplements or schedules describ- e. cross-examination style for mild or moderate brain injury cases tion about the impact of a plaintiff's injury claim. once the jurors have evidence of a plaintiff's vision, reduced noise tolerance, insomnia, nausea, neck pain, and lack of energy. cognitive its occurrence: whether the plaintiff remembers events following the occurrence. all other q. you don't do a physical examination of the patient, do you? q. the treatment you can provide is talk therapy? forty-five minute sessions in on a winner within this brief period. antithetically, many defense trial opening statements each of those has an increasing point measure. amnesia. this is the most important facet in the entire field of defending brain injury cases. brain injured patients. though each of these topics will be discussed, it is more important that the line of question- q. why not? primary antidote to this situation is a well-planned damages strategy that has been laid out forensic psychologists teach the importance of the principle of "recency." this principle the neuropsychologist can add anything to the case that could not already be determined by or moderate head injury at best. overall, the trial lawyer's style in presenting the case to ing in the game despite this impediment cannot be accomplished simply through defense lawyers with loud voices, on the other hand, must be careful to keep their distance from recognizes that people tend to remember longest those things which they hear last. dam- q. you cannot prescribe medicine? that other co-jurors may find themselves unable, in practice, to put their sympathies aside, 187 factitious disorder (ironically, this is a recognized psychological disorder unto itself). a magazine (2006). ms. iwan also is recognized by american event, then there is no brain injury.2 q. you do not have a state license to practice, correct? ate that limitation? ability to disprove a plaintiff's claims. the plaintiff. ability with a desperate half-court shot in the final seconds of the damages game. because that right? harm is done to the defendant's case by letting the jury know that the case involves a loving q. you are not a physiatrist who would work on rehabilitation skills? the specific responses to these questions do not matter. the point has been made. behavior. and a confident woman lawyer may have more success with a jury when cross- are not unlike the goals of opening statement, direct examination or closing argument. sessing the physical and mental ability to perform)? early discussion about money by the plaintiff's counsel, when accompanied by an admonition q. did you decide to limit the test to the short form or did the test supervisor initi- importance in fashioning the jury's thoughts about the case, the conclusion must be given beyond the fact of amnesia, there is an additional factor by which the severity of a pre-injury marital discord). 2 equal consideration. a weak or impromptu damages defense wastes the crucial last minutes q. sir, isn't it true that there is a body of scientific and professional literature to that the plaintiff must satisfy its burden of proof, will lead a jury to large monetary awards. terminology refers to a broad spectrum of behaviors that occur in cases with no evidence of form throughout the country. third, look for objective evidence (where usually there is none) scientific principles. after such a challenge, it is often too much to ask them to deal with a q. and you did not provide that interpretation during the testing, did you? you? opportunity for a good shot. to do this, counsel must begin identifying at the earlier stages with his or her post-occurrence behavior. thorough discovery of the pre-occurrence baseline responsibly, counsel will succeed in enlisting a neutral observer in the cause of the client. � prepared (40%); support that attorney's position. however, if they believe that, in fact, counsel is acting as jury consideration of each element when determining verdict potential. injury? a post-concussion syndrome? are they one and the same or do they differ? is it a ii. you use (version v is the latest)? all college course listings. using the internet, one can verify whether the schools attended be done in public view to minimize any privacy concerns.1 6. rally the crowd for the same money, time and effort, however, counsel can obtain all records from medical other medical personnel, and services like traceamerica (a small fee identifies all facilities while many studies have shown that jurors can grasp difficult concepts, forcing them (3) assisted at the accident scene; (4) cooperated with the police; or (5) behaved honestly and a. sympathy full background information on the plaintiff and complete raw test data during discovery being said, however, there is no power to change concrete items into inflated commodities. for that reason, it is essential that defense counsel focus on the pivotal fact for determining that the verdict form will carry blank lines for these "existential" damages, asking the jury to the concept that no one would think of asking plaintiff's expert, or any person of similar 181 for twenty-four hours or less after the occurrence, then the brain injury is mild or moderate. watch their every move. a raised eyebrow, a quizzical look, a pregnant pause are all part � personality? so) and were created merely so that these witnesses could claim they were board certified. q. for example, don't the mmpi-2 and mmpi-3 yield different results? why did examining a rape victim in a no-nonsense, matter-of-fact style than an equally experienced ing line of cross: by others that are designed to inform the jury that the case is really about the defendant's sources of reported income, and all attached schedules, including those identifying other q. those are dues-paying groups? there is no other qualification to join? � failure to conduct an adequate differential diagnosis; admirers praising them for their wisdom and delicate prose. once these materials have been j. zubin, classification of behavior disorders, 18 ann. rev. psychol. 373 (1967). plaintiff are less likely to appreciate the defendant's case. q. you were not present? by any counsel who is defending a brain injury case. the terminology should not be viewed similarly useful is an exhaustive search of past and present employment documents. in 186 head injury claims. defense counsel can exploit that flaw by proving that plaintiff has a debunking neuropsychological witness and injury case are important purveyors of favorable or unfavorable facts, they also can reveal information q. what tests did you conduct to rule out the following: q. sir, you are not a neurologist are you? anxiety, mood swings, sexual dysfunction, irritability, and reduced trust. 199 awarding money. limitations is absent. jurors. ing for the witness should highlight the witness's weaknesses as well as weaknesses in the innuendo is being created, and the propriety of their response. several of these issues are q: isn't it true that you never prescribed pain medication for plaintiff? q. did you run the validity scale on any of the tests you performed? q: and, following that visit, isn't it true that plaintiff missed numerous appoint- � failure to consider language, comprehension and memory issues from the pre- addressing sympathy with prospective panelists in a known injury case is crucial to proper authorization to the irs to obtain a complete return, all w-2 forms identifying all