This paper was written and presented by Christopher B. Kelly at the Ontario Trial Lawyers Association (OTLA) Fall Conference, 2015.
Strong competitors identify their advantages, and then use them. This is true of all fields, ranging from individual sports, team sports, politics and beyond — including litigation. In all contests the greatest advantages consist in exclusive opportunities and abilities that create an imbalance. The Plaintiffs’ lawyer has a number of exclusive opportunities and abilities in building and presenting a case.
In any case of injury and impairment, two of the Plaintiff’s greatest advantages are:
1) access to lay witnesses; and,
2) the opportunity to shape and colour the narrative by careful selection and use of lay witnesses.
These two advantages can be overlooked and unrealized.
The problem is one of attitude. We tend to see medical evidence as fundamental, and lay witness evidence as supplemental. Often, therefore, we are chiefly concerned with collecting, marshalling and tendering the reports and testimony of doctors. Lay witnesses are used to buttress the medical case.
This approach may be sufficient in cases involving frank, visible injuries and obvious impairments, e.g., severe or multiple orthopaedic injuries, traumatic amputation, complete paralysis, etc. To a great extent, these injuries and impairments speak for themselves. The appearance of the Plaintiff, aided by photographs and artwork, do most of the heavy living in the job of persuasion. Medical evidence puts that appearance into language. Impairment is a natural conclusion. Lay witness evidence is called into service late — often only to provide the final push to prove pain and suffering and the need for solace.
Cases involving injuries and impairments that are invisible are a different matter. Pain cases and mild to moderate traumatic brain injury cases are particularly challenging. The injuries and impairments in these cases do not speak for themselves. They are expressed in the lives of the Plaintiff in a more quiet and subtle way. They are often viewed from the outside with skepticism or even ignorance, and sometimes through a prism of bias.
Therefore, particularly in pain cases and mild to moderate traumatic brain injury cases, I recommend a different attitude. Build the medical case. At the same time, discipline yourself to imagine how to win for your client with no medical evidence at all. This attitude should foster the realization of both advantages.
Access to Lay Witnesses
It is difficult for my clients to identify people they know who can describe the changes in their lives following injury. They often lack the perspective to appreciate what other people might observe and notice. But, they can usually identify some. With help, including a keen review of documentary evidence, the list begins to grow. And, once the lay witness interviews start, each concluded with the simple question: “who else should I speak to?”, the list expands.
As difficult as it is for my clients to see their lives from the outside in, it is almost impossible for the Defence to collect the evidence of ordinary people who might undermine the Plaintiff’s case. The Defence is usually too removed to even find a good place to start. Even the smartest and most resourceful Defence lawyer runs into the obstacles of the Rules of Professional Conduct, privacy legislation and the basic impulse of most people to avoid communication with a complete stranger.
So, the Defence usually competes within the boundaries of the medical case. And, in lieu of any counter narrative presented through lay witnesses, they rely on the narrow beam of surveillance. They do this with the abiding and well founded worry that they will not be able to seriously challenge good lay witness evidence. They know the Plaintiff has the advantage.
When you imagine how to win for your client with no medical evidence at all, you are forced to take full advantage of your access to lay witnesses. It becomes worthwhile to devote a lot of resources to finding, interviewing and identifying the best witnesses. With this attitude, with diligence, and with a bit of luck, you will find evidence that is very difficult to refute, that has persuasive power that cannot be equalled by the Defence, and that may disprove or even eclipse all of the medical assessment reports and surveillance that the Defence can get their hands on.
Shape and Colour the Narrative
The heart of winning advocacy is a well-crafted narrative — a story that is probable, relatable and compelling.
The body of the narrative is usually outlined in a few immutable facts: John Smith was walking home from work. He was hit by a car. He was injured. Now, he does not work.
The soul of the narrative is made of the stuff that looks and feels different depending on perspective. The most probable, relatable and compelling story is the result of careful attention to the soul of the narrative in which the story is crafted through presentation of the perspectives of the best lay witnesses. Those lay witnesses are the medium that gives the story shape and colour.
To appreciate the opportunity to shape and colour the narrative you must, once again, consider the limitations of medical evidence. Doctors seldom, if ever, see the Plaintiff outside of the clinical setting. They do not see the Plaintiff in the real world, before or after the accident. They provide opinion and abstract descriptions of impairment. Good lay witnesses do not see the clinical setting — they see everything else. And, rather than opinions and abstract descriptions of impairment, good lay witnesses see day-to-day life, not in the abstract, but concrete. Who the lay witness is, and the perspective from which they see what they do, can be as persuasive the substance of their observations.
So, rather than finding lay witnesses, and then deciding how we might use them in the presentation of the case, I recommend seeking out lay witnesses with specific perspectives and narrative effects in mind. (This again is consistent with the notion that lay witnesses should be regarded as fundamental and not supplemental.) This approach puts the narrative first. The lay witnesses are the medium.
The following are a few practical examples of categories of witnesses that can be used to develop the soul of the narrative with visible shape and colour:
The narrative we are developing is that of John Smith described above. Assume John has soft tissue injuries with limited radiological findings. John would not win any popularity contests. His physical appearance betrays a tough life. His pre-accident medical chart shows a history of back pain. John is shy by nature and he is a poor communicator. John’s wife and children, like John, are good people, but they are unable to describe in detail the day-to-day challenges that John has faced since the accident. For them, it has all become a blur.
1. Merit by Association: Do your best to find someone who knows and likes John, and is more relatable and appealing than John. That person, by their mere association with John, and by their testimony about the differences in John’s life since the accident, will tend to elevate John to a more sympathetic character, and may erase bias. The best witnesses in this category are people outside of John’s immediate family, with no strong bias of their own, who have known John for a long time. A sister-in-law, with more education, a responsible job and better communication skills fits the bill. This is not the type of witness you will hear about by simply asking John to tell you who knows about the changes in his life. You have to focus on finding this type of person.
2. Trained Observer: Lay witnesses are crucial in illustrating how a Plaintiff lives inside his home and carries out his ordinary day-to-day activities. John and his family are the people most familiar with John’s daily life, but their descriptions are flat and dull. The best perspective in this context is that of a person trained to observe. The occupational therapist (OT) is that person. Wherever possible, I get an occupational therapist in the home at the earliest opportunity. The OT observes and documents function. If occupational therapy is in place, there is an opportunity to observe and document over time. In this way, the OT sees and measures functional limitations, and effort, and generally describes impairment as a matter of day-to-day existence (as compared to the abstractions offered by a doctor following a single one-hour IME in a clinical setting). The observations of the OT are admissible without the rigours of adducing expert testimony, so long as the evidence is restricted to observations and excludes opinion. One reason this approach is so effective is that occupational therapists are not only trained observers, they are also trained communicators, and they tend to be pro-social and appealing. With these qualities the OT not only reliably describes what John’s life looks like at home, but like the appealing sister-in-law, he or she elevates John to a more sympathetic and relatable character.
3. Witnesses in the Margins of the Medical Evidence: Plaintiffs with invisible injuries and impairments are held to a higher standard of proof. In effect, to win for this type of client, you must establish that he or she is not only entitled, but deserving. Proof of effort to overcome injury and impairment is one of the best ways to transform a merely entitled Plaintiff into a deserving Plaintiff. The narrative should always be shaped and coloured with lay witnesses who can describe your client’s effort. Some of these witnesses can be found in the margins of the medical evidence. For instance, assuming John has worked hard at his rehabilitation, I would interview the staff at the gym, the lifeguard at the pool, and the person at the front desk at the physio clinic. This is particularly effective in relatively small urban centres or rural areas, where people in the community will tend to know one another and take notice. If John was noticed by the lifeguard attending early morning swims, he or she may be able to provide an account of John’s attendance, and his behaviour, that leads to an inference of both impairment and effort. Ideally, this witness has no other connection to John, and therefore no bias. This evidence not only tends to prove effort, but places John in the larger relatable context of the community.
4. Witnesses in the Margins of the Vocational Evidence: A Plaintiff’s occupation is sometimes hard to get across in evidence. Experts are often used to provide this evidence in the form of job-site analysis, and transferable-skills analysis. An exceptionally good vocational expert can provide a fairly vivid description of the occupation in the real world. But, none of these descriptions is as compelling as that provided by a lay witness who does the job himself, or sees it being done. The workplace is inherently competitive. People working together, or for one another, can offer surprising insights. Bosses, supervisors, co-workers, employees and customers are a deep pool of information both about the Plaintiff’s occupation, as well as his job performance before and after the accident. In John’s case I would interview as many of these people as I could. I would try to identify a couple of people with different perspectives who could describe John’s job in real-world terms, and describe John’s productivity both before and after the accident. The best witnesses in this category would be people who were unaware of John’s pre-accident back problems, who see John as productive and dependable, and who are more appealing than John, though not necessarily in the same way as the sister-in-law, the OT or the lifeguard. An unbiased, hard-working, ‘salt-of-the-earth’ boss or co-worker can be an appealing stroke of colour in any case.
5. He Doesn’t Come Around Here Anymore: While from the outside, there might be lots of reasons to believe that John’s inability to return to work has nothing to do with real disability, his injuries and impairments can be the only reason why he suddenly stopped hunting, fishing and playing hockey. A vivid account of avocational losses can eclipse any suggestion or suspicion of malingering or secondary gain. Lay witnesses can describe this change in lively and irrefutable terms. These witnesses can often augment their testimony with photographs.
Testimony and images can describe what John enjoyed the most before the accident. The fact that he is no longer doing what he enjoyed the most leads to the inference that his injury and impairment is real. There is often an inherent drama in this aspect of the narrative in that those activities that John loved so much now continue without him. The best witnesses in this category may be friends who know why John no longer participates, and who may even feel some guilt for carrying on without him, or mere acquaintances who do not even know why John stopped coming out: “He just stopped showing up.” The inference and the drama in this context tends to erase bias or doubt about John’s loss of working capacity, again, especially if the lay witnesses describing this change is relatable and appealing. The effective use of this category of lay witness, essentially invoking the notion of lost joy, gives the whole narrative a universal quality.
6. Time Marches On: Contrast is an integral element of any narrative. The essential element of contrast in a case of injury and impairment is the ‘before and after’. Ultimately all of the evidence in support of the claim for damages is meant to address this contrast. In most cases there is an opportunity to include in the narrative an additional and complimentary contrast. Especially in the cases of young people, teen aged or early adult, I do my best to identify a peer or friend who at the time of the accident was at the same stage of life as my client, advancing through life on a parallel track. That lay witness can be an ideal before-and-after witness in that she can describe my client the way he was before the accident, and the way he is now. The complimentary contrast is in the account of where life has taken the witness since the accident. By including this contrast in the narrative, my client’s before-and-after is seen in a broader context, and relative to the unimpeded life of that peer of friend. For John, depending on his age, the time-marches-on witness could be a peer or friend, or even a sibling who is fairly close in age. A co-worker might fit the bill, especially if he/she has seen workplace advancement since the accident. The contrast that is depicted in the witness’s life does not have evidentiary value per say. Rather, it is background, which puts the evidence of John’s life in greater relief.
Every case is different. This paper has described a way of thinking about lay witnesses generally, and particularly in the context of a pain or mild to moderate TBI case. There are many other examples of categories of lay witnesses than have not been described here, with application to all kinds of cases. The key is to approach your case with the understanding that lay witness evidence is a medium for developing the narrative that is out of reach of the Defence, and that, with the care of a sculptor’s knife and an artist’s brush, this evidence can be used to uncover and tell the real story.