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A version of this article first appeared in TRIAL magazine.

Connecting and Communicating with the Catastrophically Injured, Emotionally Devastated, And/or Otherwise Severely Challenged Plaintiff in Preparation for Court

by Amy Singer, Ph.D.

Litigation is never easy for any plaintiff. The stakes are huge, the courtroom setting disconcerting, the atmosphere charged, and the opposing sides often bitterly, even ferociously, engaged against each other. If the typical plaintiff (or as I refer to as the "wrongfully injured") feels anxious, uneasy, put upon, and angry as a result of this pressure cooker situation, what about the plaintiff who enters the courtroom already overwhelmingly burdened, either physically and/or emotionally, as a result of his or her litigation?

This includes quadriplegics who are unable to control even their most basic bodily functions; burn victims grossly disfigured and condemned to live in a hell of never-ending pain; amputees who must get by with stumps for arms and legs; severely brain-damaged individuals unsure of what they may think or feel - or do - from one minute to the next; child abuse victims who no longer know whom to trust; the emotionally devastated who have lost all they have ever lived for and loved; and similarly tragically treated and/or severely challenged plaintiffs.

Already tested so harshly in life, how do the wrongfully injured deal psychologically with the intense additional pressure the courtroom brings? What are their special needs, and how can these best be met by the attorney?

Even more fundamental, how can the attorney plan to reach, and to communicate with, such plaintiffs in an open and meaningful manner? How can he or she hope to even remotely understand the extent of their immense physical and/or psychic pain? And how can this dreadful damage be communicated in a competent, compelling, and dignified fashion to the often hostile jurors,[1] so they, too, will understand and empathize?

Finally, how can such often guarded individuals be successfully encouraged to open themselves up in court? That is, how can they be encouraged to put their "best foot" forward.....especially if they don't have any?

Important questions to ask

While questions such as these do not always provide easy answers, it is nevertheless incumbent upon the attorney to pose them. More than anything, such questions indicate at least that the attorney is placing emphasis squarely where it needs to be placed - i.e., on the needs of his or her catastrophically injured, emotionally devastated, and/or otherwise severely challenged client. Unfortunately, however, this emphasis is often misplaced; indeed, the tendency of many attorneys is not to focus on - or even to truly concern themselves about - the psychological needs of the client, regardless of the extent of his or her physical and/or emotional problems; but to devote all of their attention to the "needs" of the case instead. (It is ironic that when the psychological needs of the wrongfully injured are met, the end result is a likable, sympathetic, credible witness - i.e., the best predictor of a positive verdict decision.)

Plaintiffs' number one complaint

According to the Florida Bar, the primary complaint of most litigation clients is "my lawyer never has enough time for me." This is because many attorneys prefer to avoid dealing with their clients as much as possible, while focusing almost entirely on the purely legal and strategy aspects of the case. Clients are meddlesome and annoying, many attorneys feel, and have little to contribute in terms of case planning. As a result many attorneys attempt to dodge their clients whenever they can. The truth is many attorneys would try their cases without clients if they could!

But attorneys who attempt to distance themselves from their clients are making a major error, and for numerous reasons. If unable to contact the attorney despite repeated attempts, the client and/or his or her family members often will turn to a respected "chief of the tribe" for advice - i.e., the rabbi, the priest, even Uncle Sid. This is a recipe for disaster, because now someone other than the attorney begins calling the shots. "I think we should be doing things differently," Uncle Sid says, or even, "I know another lawyer who can do a much better job."

Attorneys should also stay close to their clients in order to provide the vital "psychic comfort" that is so essential during highly charged litigation, particularly for catastrophically injured, emotionally devastated, and/or otherwise severely challenged clients. The more injured the client is, either emotionally or physically, the more he or she will be in strong need of a reliable counsel, mentor, and confidant during the entire time the file is open.

Equally important, the attorney needs to remain close to the client because he or she can be an extraordinary useful resource. No one knows the case better than the client, who almost always regards it as the single most important event in his or her life.[2] Most clients have an intuitive grasp of the problems of the case, along with an understanding regarding their inherent solutions.

Clients can provide singularly valuable insights to the attorney at trial time, as long as he or she knows how to effectively draw out such information. This is not always easy, but can prove particularly difficult when it comes to catastrophically injured, emotionally devastated, and/or otherwise severely challenged clients who often have become intensely wary and circumspect as a result of their pain and suffering.

So what are the best approaches the attorney can use to get such guarded plaintiffs to open up and reveal themselves - to the attorney for fact-finding and related purposes, and later to the jurors during trial?

Catastrophically injured and similar plaintiffs need to tell their stories

Everyone has a story to tell, but the wrongfully injured often feels a far stronger psychological need to get his or her own "story" out than does the average person. This is understandable: without warning life sneaked up and dropped a ton of weights, metaphorically speaking, right on the client's head. How can he or she be expected to make sense of such an inexplicable and ruinous turn of events? One proven way is to speak about what happened with someone who cares (hopefully an accurate description of the attorney responsible for presenting the client's case in court).


The wrongfully injured want to tell their stories to others, but often don't know how to do so. Furthermore, it is far from easy for the client to discuss such a painful topic as what laid him or her low. The revisiting of this tragedy can be a source of intense additional pain for the client. One excellent solution to this problem is through the use of psychodrama, i.e., therapeutic role-playing in which the client interacts with the attorney in a non-traditional yet innovative and revealing manner to more completely get in touch with, and portray, his or her affliction and grief.

A highly effective form of therapy employed by psychologists since the 1920s, psychodrama allows for the externalization of the inner self through dramatic role-playing. It is a process whereby a person's internal thoughts, feelings, reflections, and perceptions (including those of sight, sound, and kinesis) can be demonstrated in front of others. Psychodrama provides a therapeutic "stage" on which many individuals - e.g., wrongfully injured and attorney alike - are able to readily overcome their inhibitions and "act out" their inner lives in a spontaneous manner, creatively interacting with each other.

Psychodrama is one of the psychologist's most powerful tools to quickly penetrate an individual's defenses, while at the same time enabling that person to break through denial and reveal highly personal truths. It is an ideal technique to aid the catastrophically injured, emotionally devastated, and/or otherwise severely challenged client get in touch with painful thoughts and feelings regarding his or her own particular tragedy, and reveal these feelings to others (i.e., the attorney, and later, the jurors).[3]

The activity involves the client, under the watchful direction and encouragement of a trained psychologist,[4] spontaneously dramatizing his or her personal tragedy in front of the attorney, who ideally will also participate in the role-playing.[5]

For example, the client, a horribly disfigured burn victim, may describe and act out being trapped in a room on fire with no way out; the flames roaring all around; the dreadful pain of being burned; breathing in fire and flame; and the horror of having one's charred skin hanging like an ugly drape from the body. Then the client may represent what life is like now; the months of painful recuperation in the hospital; the ordeal of being operated on dozens of times; the embarrassment of always needing to wear an elasticized cloth mask over the face to reduce scarring; the discomfort of too tightly healed skin; the pain medicines that never seem to help; the shame of looking in a mirror, and similar details.

Role reversal

One of the primary advantages of psychodrama is that it helps the attorney more accurately get in touch with the pain and discomfort of the client through role reversal - i.e., the attorney adopts the "role" of the client and attempts to accurately demonstrate the pain and discomfort he or she imagines the client may be feeling. The client then evaluates the attorney's performance, "correcting" it as appropriate so that his or her interpretation of the client's pain and suffering is made as realistic as possible.

Psychodrama enables the attorney to become far more psychologically aware regarding precisely what the client is thinking and feeling; as such, it promotes a more mature level of empathy and understanding regarding the client's problems.[6]

Along this line, psychodrama offers the attorney a truly singular advantage: he or she can, in effect, become the client - at least for a brief while during the role reversal session - in order to better understand the client, and thus best represent the client later in court.

Magic occurs when human beings interact

The spontaneous and creative interaction that takes place between attorney and client during psychodrama can go a long way to help remove the psychological barriers that exist in the typical attorney-client relationship. As a result, attorney and client can interact with each other freely and openly as human beings, instead of in the often rigid and stultifying roles of counsel and plaintiff. This interaction helps the attorney establish the closest possible emotional tie with the client, no small matter when it comes to legal representation in court.[7]

Must love the client

Too many times I have had various attorneys tell me the same thing: "I really dislike my client." This is a major problem. The attorney can be sure that jurors will sense it if he or she does not like the client - and judge the client accordingly. It has been said that war would be impossible if soldiers were able to spend holidays at each other homes. So too, it is almost impossible to dislike someone with whom you have participated in a creative interaction session such as psychodrama.

Psychodrama helps the attorney learn not only to like the client but to go one important step further, i.e., to love the client. This emotion is extremely valuable when it comes to presenting the most heartfelt and compelling case before jurors. My 18 years experience as a litigation psychologist indicates that loving the client is one of the most critical factors required for effective trial representation. It should come as no surprise that this ability to truly love the client is a defining characteristic shared by many of America's best known and most successful plaintiffs' attorneys.

Attorneys put psychodrama to effective use

Numerous successful attorneys rely on psychodrama to aid them with their trial work.[8] "Psychodrama is the most effective and most probing means of quickly getting at the truth regarding how a person feels about a tragic event that occurred in his or her life," says James E. Fitzgerald (The Fitzgerald Law Firm - Cheyenne, Wyoming). "In having a client re-live an event, as opposed to telling a story about it, you obtain far more detailed and accurate factual material," says Bill Trine (Williams & Trine P.C. - Boulder, Colorado). "Psychodrama does a better job of refreshing the client's memory," Mr. Trine continued, "so he or she can give a more accurate version in the courtroom or during deposition of what transpired, and do it in a more believable way."

Through psychodrama the client can actually re-live in the courtroom the event which led to his or her injury or loss. "This technique allows the jurors to bond with the client," says Mr. Trine. The procedure works as follows: the client is asked to step down from the box and "act out" the pertinent events by describing them to the jurors in the first-person, with the attorney assisting through questioning. For example:


Where are you right now?


I'm on the highway driving my car at night. My two small children are asleep in the back seat.


What about the other traffic on the road?


A large truck is speeding towards me, weaving back and forth in and out of traffic.


How do you feel?


I'm terrified! The truckdriver is now completely out of his lane and racing towards me head-on. What is he doing? He must be crazy! I can't get out of his way.


Now what is happening?


The truck lights are blinding me! I'm screaming and my children have woken up and are crying. All I can see are two enormous headlights barreling towards me. My god, my babies and I are all going to die!

This type of courtroom presentation can be incredibly powerful in assisting even the most hostile jurors understand how a particular chain of events took place that led to the litigation. Opposing counsel may object to such testimony, but as Mr. Trine points out, "It's demonstrative evidence....the client's version of what happened."

Helping the client move beyond bitterness and anger

It is understandable that many catastrophically injured, emotionally devastated, and/or otherwise severely challenged plaintiffs are intensely bitter and angry as a result of their pain and suffering. (Note: bitterness and anger represent depression turned inward, and thus are natural responses for someone who is wrongfully injured.) Losing full or partial use of the body and/or its faculties - as is the case with quadriplegics, paraplegics, the severely brain-injured, and similar plaintiffs - tears an immense hole in a person's vital sense of well-being, and one that is extremely difficult to repair. This is also the case for plaintiffs who have suffered the ultimate injury, i.e., losing a loved one or loved ones due to the event(s) leading to the litigation.

But negative emotions such as bitterness and anger can turn off jurors who find it difficult to empathize with sullen and sour plaintiffs. In this regard, psychodrama can have a tremendous cathartic effect in helping the client express his or her bitterness and anger through role-playing prior to trial - and thus get beyond these negative emotions. Further, psychodrama, when professionally organized and directed by the psychologist, can help the client learn to positively channel his or her anger in such a way as to deliver the most powerful and moving courtroom testimony.

Helps jurors too

Psychodrama helps to adroitly reframe the client/witness's testimony so that jurors can better understand and empathize with him or her, and in so doing experience their own needed sense of emotional catharsis regarding the conflicting testimony presented. "Ah-hah," is the typical juror response to such powerful witness testimony. "Now I finally understand what this case is all about."

Today, more than ever before, cases are settled on witness testimony. Jurors are more cynical towards attorneys and have a tendency to tune them out - they want to hear what the witnesses have to say. That is why in most cases it is client/witness testimony which becomes the pivotal point of the case. Consequently the client's demeanor on the stand is of the utmost importance.

For proof, consider the following: during focus group research we normally put the client "on," i.e., in front of the surrogate jurors, after they have decided certain key case issues. Sixty percent of the time jurors change their minds regarding these key issues (usually in a negative direction) after they have met the client. Clearly client style and demeanor means everything to a positive verdict.

Remember: jurors do not bond with bitter and/or vexatious plaintiffs, but will do so readily with plaintiffs who have discovered the courage to come to grips with - and to appropriately direct - their angry feelings and emotions. Therapeutic techniques such as psychodrama[9] can help plaintiffs learn to do so in the strongest possible fashion.

Comprehensive witness preparation is essential

Attorneys do not devote enough time and attention to witness preparation, often leaving this vital case component until the last minute. This is a mistake - one slip in court by the witness and the case can blow up in the attorney's face. Cases may be won by the framing of issues and arguments, but they are also lost by witness testimony.

The attorney should comprehensively prepare the witness immediately before deposition and also again directly before trial. He or she should plan to spend at least three hours of preparation time with the witness for every hour of testimony in court or during deposition.

Numerous valuable techniques from the world of psychological counseling are available that can help the witness feel less nervous about testifying in court and also deliver the strongest possible testimony. These include classic relaxation therapy; the use of "positive imagery" (the witness learns to envision a highly positive response to each statement he or she makes in court); "psyching-up" strategy that lets the witness get a handle on his or her fear of being questioned by opposing counsel; "emotional arousal" to assist witnesses with excessively flat affects register appropriate emotion during testimony regarding their pain and suffering, and similar creative approaches.

The attorney should always include operant conditioning techniques employing mirrors and video cameras for each witness preparation session. These let the witness immediately see how he or she is coming across so necessary adjustments can be made to improve the overall presentation style.[10]

Living a "Day-in-the-Life"

Plaintiffs' attorneys appreciate the value of "Day-in-the-Life" videos in vividly demonstrating to the jurors the full extent of a client's daily pain and suffering. These videos movingly and credibly portray the immense difficulties a catastrophically injured plaintiff may experience in simply trying to get out of bed, brushing his or her teeth, buttoning a shirt or blouse, using the bathroom, eating, or turning off the light. "Day-in-the-Life" videography is cinéma vérití in its starkest and most powerful form.

But in addition to commissioning a "Day-in-the-Life" video, the attorney who wants to truly understand the extent of his or her catastrophically injured client's pain and suffering - and effectively communicate this information to the jury - should plan to actually spend a full "day-in-the-life" with the client - i.e., from the time the client is maneuvered out of bed, washed, dressed, fed, and otherwise attended, to the time he or she is eventually put back into bed again.

This vérití practice is one that Chris Searcy (Searcy, Denney Scarola, Barnhart & Shipley, P.A. - West Palm Beach) uses to better understand the full extent of the many physical and emotional challenges his catastrophically injured clients must meet and overcome during the course of a normal day. As a result of his investment of time and effort, Mr. Searcy is an expert in helping jurors fully understand and empathize with the pain and suffering of the clients he represents.

Holistic litigation

The attorney's trial plan should address the total needs of the client - not just in terms of preparing the client for deposition and testimony in court but for the entire often painful and unsettling experience of litigation. Along this line, the last thing catastrophically injured, emotionally devastated, and/or otherwise severely challenged clients need is more pain and suffering. This means, among other things, that the attorney should: 1) always prepare the client intellectually and emotionally for the possibility, however unlikely, of an unfavorable jury decision; and 2) have some plan in place to provide immediate psychological support and comfort to the client, if necessary, after the verdict is read.[11]

Look for the silver lining

It is a paradox that many catastrophically injured clients often "benefit" in one way or another from their individual pain and suffering. For example, one quadriplegic client with whom I worked stated that his injury had taught him patience, and related that many times he might have to bear a fly walking up and down on his face for two to three minutes or more before his attendant came over to brush it off. Another client who had been horribly disfigured from a fire explained that she had developed a far greater appreciation regarding the sanctity of life after nearly dying.

It is important during direct testimony to let catastrophically injured clients relate these types of stories to the jurors. Such testimony greatly honors the client who provides it, while uplifting the jurors and all others in court who are privileged to hear it.

Must travel a mile in the client's wheelchair

An old Indian proverb says you should not judge a person until you have walked a mile in his or her moccasins. And the attorney cannot hope to fully understand the catastrophically injured, emotionally devastated, and/or otherwise severely challenged client - or expect the jurors to be able to empathize with the client's pain and suffering - if he or she is not prepared to, in effect, "travel a mile in the client's wheelchair."

This cannot be accomplished unless the attorney invests the time and energy necessary to truly get to know the client, and to fully understand the client's feelings regarding his or her pain and suffering. Psychodrama, living a "day-in-the-life," comprehensive and creative witness preparations, and similar professional, therapeutic, and empathetic techniques can help the attorney accomplish these vital goals.


[1]A hostility brought about largely by supposed tort "reform."
[2] Many clients dream about their cases!
[3] Psychodrama can be a particularly valuable technique when it comes to helping small child abuse victims safely describe to others what happened to them.
[4] Psychodrama represents a complex therapeutic activity that presupposes extensive professional training and expertise in therapeutic counseling and, in particular, psychotherapy. A trained psychologist licensed to practice psychodrama is necessary to organize and direct psychodrama sessions with clients. Under no circumstances should the attorney attempt to organize a psychodrama session himself or herself, or delegate this activity to a paralegal. Psychodrama represents a highly specialized tool in the psychologist's arsenal, and as such requires a thorough professional understanding regarding its application and use.
[5] Other carefully selected individuals may also be on hand to observe the client "act out" during psychodrama.
[6]It is important to note that the attorney often needs - and benefits from - psychodrama as much as the client! By assuming the "role" of the client, the attorney truly begins to understand exactly what he or she is up against, and thus is better able to empathize accordingly. Psychodrama is without a doubt one of the most effective techniques available to help the attorney and client quickly bond together.
[7]Psychodrama sessions involving role-playing require a relinquishing of egocentricity on the parts of the client and the attorney.
[8] This includes legal legend Gerry Spence.
[9]Psychodrama, relaxation therapy, speech and presentation coaching, and similar tools and techniques offer the best opportunity to help the client/witness improve how he or she comes across in front of jurors. And since witness demeanor is so absolutely critical to a successful verdict, few areas of study and application are more important to the attorney than are these valuable witness preparation techniques.
[10] These and similar effective witness preparation techniques are fully detailed in "Practice Makes Perfect: The Psychology of Witness Preparation," by Amy Singer, Ph.D., TRIAL, September 1996, pages 70-74.
[11] This could include having the psychologist who organized the psychodrama sessions be available to provide emotional support to the client after the verdict if necessary.