Lay witnesses vs. "Psych" testimony
This is a sensitive area which requires a seasoned analysis of which forms of damage evidence are likely to sway a jury, and before that, an adjuster or a claims department. There is little question, particularly in these economic times, that jurors are highly suspicious of any claim they find the least bit questionable. Even in Los Angeles, where folklore would have us believe everyone has a therapist, jurors (and most certainly, claims people) are dubious in their assessment of the psychiatric component of a personal injury claim unless the claim is for truly catastrophic injuries. Defense lawyers, the claims people they report to, and trial jurors, universally react with skepticism to "psych” testimony in a non-catastrophic personal injury case. With the help of a small business lawyer you can get advice about business and business legal matters.
An individual who has suffered personal injuries will normally suffer some mental and emotional distress which naturally accompanies his or her physical pain and trauma. In those instances where the underlying pain and trauma is something less than catastrophic, it is generally advisable not to put the plaintiff’s mental state in issue. This can be accomplished by claiming no more than the normal pain and suffering associated
with the physical injury. It has been recognized that an allegation of pain and suffering from a physical injury permits a party to recover for a full range of emotional injuries. Pain and suffering includes physical pain, fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror and ordeal.
Taking this approach has its obvious advantages in that it deprives the defense from conducting a mental exam and pegging your client as a malingerer exhibiting psychosomatic self-aggrandizing behavior for purposes of monetary gain; allows the jury to focus on the real crux of the case without getting sidetracked on collateral psychiatric issues that do not translate into any significant economic loss; prevents the conservative tort reformers on the jury from clasping onto components of plaintiff’s case that might make the plaintiff seem more whiny and money hungry than the real victim he or she actually is.
It is generally far better to prove the emotional impact of the injury/disability upon your client, his/her life, his family, and his lifestyle, from the mouths of those who know him/her best, rather than from a mental health professional. This is, again, an area where you can be cost-efficient, but it is also an area where there is no substitute for the trial attorney's personal legwork in meeting personally with the potential witnesses. And, if you literally go the extra mile by meeting these lay witnesses at their homes or places of work, rather than in your high rise office building, you will reap great dividends if/when these individuals are called upon to testify at trial or in deposition.
In those instances where your client suffered a catastrophic injury or witnessed a catastrophic event, then, of course, the best solution is to buttress the lay testimony with a competent expert who can explain what happened, diagnose the patient and suggest scenarios for future care and treatment to be later addressed by a life-care planner and economist as needed. In these cases, if lay witnesses have been deposed, or will be presented at trial, to give testimony relevant to the psychological or emotional component of the client’s injury, be sure that your expert(s) have reviewed those transcripts or have an understanding of what the lay witnesses will testify to at trial. At all costs, you must avoid a discrepancy between the level of injury or disability described by the expert(s) and the percipient observations of family, friends, or co-workers.
If, for example, your expert will testify that the residual effects of your client’s injuries have left him frequently forgetful, easily confused, etc., you must be certain (or as certain as you can be) that the lay witnesses will concur. If, instead, the co-worker, when asked by your adversary at trial “Have you noticed since the accident, that Joe the Plaintiff is often forgetful and gets easily confused, as we were told by Dr. Psycho,” answers: “No, not really,” the impact will be devastating. Not only will your damages case be deflated, but your credibility and the credibility of your case will take a major hit, and if liability is not 100 percent clear, your odds of obtaining a verdict will be diminished, perhaps substantially.