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15 Jury Expert 1 (2003)

handle is hein.journals/jurexp15 and id is 1 raw text is: Trial Excellence TM Tactics, Legal Updates & Samples mVolume 15, Number 1 Presenting a Normal Client in Closed-Head Injury Cases by David Finley, Esq. and Chelsey Drysdale Trial Excellence Staff Closed-head injury cases can pose a myriad of challenges for even the best trial attorney. A par- ticularly thorny problem arises when a pro- foundly injured client presents as an articulate, gregarious and intelligent witness, seemingly normal to the average juror. California attor- ney, James Bostwick, faced this challenge in the case of Zivic vs. Winterland Productions, and walked away with a state-record verdict (for non- punitive damages) of more than $21 million. On what turned out to be a life-altering day in the late 1990s, Jan Zivic sat in her BMW at a red light at the bottom of the Fourth Street exit ramp CONTENTS Features Presenting a Normal Client in Closed- Head Injury Cases ......................................... 1 Seattle Team Scores Victory for Survivor Parents in Test of New Child-Death Statute .............................. 6 Additur Ruling in Snowboarding Case More Than Doubles Jury's $4.4 Million Award ..... 8 Departments * View From the Bench ..................... 8 * Bell's Trial Weapons ..................... 12 Samples & Forms * Sample: Plaintiff's Oppo~ifion to Defense Motion for New Trial ............... : ........ 14 January, 2003 off Highway 280 in San Francisco, California. A Mack truck struck her abruptly from behind at a speed of between 15 to 18 miles per hour. Notably, the truck did not produce any skid marks during the accident. The key defendant in this case-Winterland Productions, the truck owner-asserted that the accident was caused by brake failure. Bostwick described the two major hurdles encountered in this case: 1) if the brake defense From deposition and voir dire to his closing argument, [counsel] hammered at the notion that his client could appear normal when she really wasn't. would have been successful, it would have elim- inated the main defendant, and his client would have gotten little or nothing; and 2) his client was the most articulate, intelligent person in the courtroom, which clearly posed problems in proving the closed-head injury case. The following discussion outlines how Bostwick skillfully confronted and overcame each of these potentially devastating issues. Overcoming the Normal Client Dilemma Jan Zivic presented as a totally normal client. If ,you met her, talked to her, and had dinner with her;' you would never have the slightest idea that she has brain injuries, said Bostwick. He recalled that while testifying, she never missed © 2003 Esquire One Publishing

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