Should Your Client be in the Courtroom?

There are many cases on which I consult where the question arises, do you bring the client to the courtroom?  This is often an issue in brain injury cases and in cases of severe physical impairment, but it can be an issue in any case, such as soft tissue injuries.

The concern is that jurors will do one of two things:

  1. Either they will devalue the plaintiff’s injuries if the plaintiff looks and acts normal (or doesn’t seem to be in much pain), or
  2. They will see terrible injuries but view the client’s presence as a ploy to invoke sympathy.

Consider in addition to the above issues that if your client has horrendous injuries, the longer the jury looks at them, the more accustomed to them they become and the less disturbed they will be.

The problem with not presenting the plaintiff, however, is that jurors may hold it against you and if the plaintiff does have visible injuries (or severe enough mental injuries), you lose the chance to show jurors the extent of the damage.  The best way to know whether presenting the plaintiff will do more harm than good is to test the plaintiff’s presence in a focus group or mock trial (usually by video so as to preserve confidentiality).

Focus groups aside, however, why not ask your actual jurors during voir dire which they would prefer?  Tell jurors that you need to make a decision and you’re going to look to them for guidance. And then be honest.  Tell them about your client and the extent of
injuries.  Then explain that some jurors would require the plaintiff to be at trial so that you could at least see him/her and so that he/she is part of the process.  Others say that it’s unnecessary for the plaintiff to be here and that if you did bring him/her here, they would get the feeling that you were trying to play on their sympathy (which you tell them earlier on and throughout voir dire that you are not going to do).  Tell them that you are concerned that if you do bring him/her in, some jurors will say that you were trying to invoke sympathy and yet if you don’t bring him/her in, you’re afraid that some jurors will say you should have brought him/her here and will hold it against you and the plaintiff.  Ask them for help on that decision.  This will take the burden off of you and regardless of what you choose (you may have jurors disagreeing), you have put yourself off-code from being a typical lawyer
and they will understand that different jurors told you different answers.

In cases where your client is severely injured, the best solution is often to have the client present for voir dire and to testify, but quickly get them out of the courtroom at all other times.  This way, the jurors get to see and evaluate your client and yet do not have time to get accustomed to the injuries.  In such cases, it is easy to explain to jurors that your client is either in too much pain to stay in court all day and/or that his/her doctors have said that it would be mentally to difficult to hear all the testimony.

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