I have started a little series on David Ball’s Damages 3 book on how to prepare and try a case. I’m going to keep that going. But, today, I’m going to turn to another “must-read” book for plaintiffs’ lawyers (and, shhh, probably defense lawyers too): Polarizing the Case by Rich Friedman.
Ultimately, plaintiffs’ lawyers sue because of one of two things in dispute: liability or damages. If you are regularly filing lawsuits where both liability and damages are significant issues, you are going to be putting your resume out there soon. Because your firm is going under.
If the trial is ultimately about damages, the likelihood is that some element of the defense is that there is a chasm between the plaintiff’s claim of the pain and consequence of the accident and reality. If liability is clear and there is no claim of a preexisting injury, this is pretty much the only defense to the case. Rarely are both lawyers telling the jury, “Hey, we all agree on the injury and the impact on the Plaintiff, we just need to know what the value of these injuries is.”
There is a tension in the defense lawyers’ argument. Usually, their play is to say, “Believe me, we are not calling the Plaintiff a liar. We would never do that. But we are going to convince you that she is that “L” word that we can never say. Don’t believe a word that comes out of her lying mouth. And let’s work together during the trial to call her the “L” word without actually saying that. (Because we would never do that.)”
In Polarizing the Case, Friedman argues that personal injury lawyers should give each witness a choice: either the plaintiff is lying or the plaintiff is telling the truth. Witnesses are just like the defense lawyer: no one wants to go out on a limb and call the plaintiff a liar directly. If you peel the onion a little bit, the witness has to do either one of two things: (1) commit to a position, or (2) expose their evasive answers for the gamesmanship that it is.
There is also an interesting tension for plaintiffs’ lawyers when they play out the whole “liar or not” play. Defense lawyers run from calling plaintiffs liars directly because it is impolite. But it is also impolite to call someone out on their impoliteness or, as Friedman says, “It is considered rude to publicly point out someone’s rudeness. So doing it at trial “feels riskier” and it might be more comfortable to just play in the margins and keep the “liar” question in the closet. Brilliantly, I think, Friedman dedicates a whole chapter just to telling plaintiffs’ lawyers that it is normal to feel this way but that you have to overcome this social convention and get the liar issue out there.
This is a great book. You should send this blog post to your plaintiffs’ lawyer friends. Because more plaintiffs’ lawyers need to read this book. You can buy a copy by clicking on the link to Polarizing the Case in the first paragraph (I took the link down, it was broken). I’ll warn you: it is expensive. But it is worth the investment. (By the way, it is important to note: I don’t know Rich Friedman and could not pick him out of a lineup.)