If you are a Plaintiff’s attorney and have not yet read Rick Friedman’s “Polarizing the Case,” I highly suggest it – and this post probably won’t make much sense until you’ve read it, although some of my comments apply to trying cases in general. The premise behind Polarizing is to make a defendant and his/her paid opinion witnesses (note: not “experts”!) choose between saying your client is a liar regarding their injuries or pain or saying your client is telling the truth and the injuries and pain do exist. In coaching various attorneys in case strategy, I have gotten the feeling that many attorneys are seeing “Polarizing” as the next great gimmick and are anxious to use it. It is a wonderful technique, but you need to understand the premise behind it and use it only when appropriate.
The following are some mistakes I commonly see:
1. Wrong Case: Not every case is good for Polarizing. Firstly, the defense must be in some way calling your client a liar – usually though malingering claims. If they are fighting you on liability and causation issues but not really contesting the pain your client is feeling, then Polarizing is not appropriate. The defense must be pointing fingers at your client and arguing that the pain is not real or that your client is reporting more pain than he/she really has, etc. It’s possible to have a Polarizing case when the defense contests liability if they are arguing that your client is lying about his/her version of the events, but usually Polarizing is used for damages issues.
2. Wrong Client: Not every client is good for Polarizing. If your client has anything that will tend to make jurors doubt their sincerity, you cannot base your case on jurors either believing or disbelieving your client. If there are Facebook photos that show your client river rafting when he is claiming serious back pain, do not Polarize. If your client was filmed in video surveillance doing anything inconsistent with the injuries, do not Polarize. If your client will not come across as completely genuine and truthful on the stand, do not Polarize.
3. Wrong Timing: There is debate amongst consultants as to when to start Polarizing. Rick Friedman tends to advocate using it early on in opening and making the case all about choosing whether your client is lying or not. Others, like David Ball and myself, tend to wait until later in opening to start Polarizing. In my opinion, the Polarizing techniques seem too adversarial for you to use early in opening. Jurors don’t trust you yet so to ask them to believe not only you, but your client, is risky. I prefer to wait until the end of opening to discuss Polarizing issues. In some cases, an attorney will tell me they are not sure how much the defense will really push a malingering issue or what they will say about it. In those cases, I do not suggest using Polarizing in opening or anywhere at trial until you know the defense has pulled the trigger. If you push an advocacy issue of accusing the defense of game tactics and they never play that game, you seem disingenuine. Be certain that the defense is going to push the lying issue before you bring Polarizing into the case at all.