Mel talks with John Lipsitz, Esq, a partner at Lipsitz, Ponterio & Comerford LLC about jury trials. John says when you try a case in front of a jury and it is a negligence case, personal injury case which are usually a variety of negligence cases, you have to prove to the jury that the defendant or defendants breached a duty of care with respect to the plaintiff. They did something, for example they failed to warn about a dangerous product, when they should have warned against a dangerous product. Then you have to show that the failure or that breach or duty was the cause of an injury. He says in other words, did the injury occur because of what the defendant or was it something else that caused the injury. John says then you once you establish the proximate cause that results in an injury, then we talk about damages and that’s where the jury gets to evaluate the consequences of that injury in terms of somebody’s life. If the injury is for example a traumatic injury, an accident that results in paralysis, a brain trauma, a loss of a limb, then you are talking about physical pain, mental anguish and that could involve a sense of embarrassment or anxiety and you are also talking about a loss of quality of life.
What are some of the hurdles the best attorneys have overcome when they are presenting a case to a jury? John Lipsitz says you want to make it real. You need to use the skill you have to help a jury understand the level of pain and suffering that a person is experiencing. He says in almost every case where you have to a condition treated by doctors you are going to get the hospital and doctor records. He says you look to see whether pain killers are being administered which is a pretty good indication of the level of pain is significant. There will be a back and forth discussion maybe in the jury box later on when they are evaluating the case and deliberating whether the pain was very intense and should be compensated at that level or whether the use of painkillers dialed back the pain and perhaps things are not as stark a problem for the plaintiff as they might otherwise have been. There are a lot of factors.
John says there is no particular science to the evaluation of pain and suffering damages by a jury or even to the presentation of the evidence and jury’s, as with most issues that come before them are expected to draw on their common human experience. He says you have to appeal to the common humanity of the jury but focus on your client; focus on the facts of this case.
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