Rainbows, Lollipops, And Unicorns: The Life Of A Personal Injury Plaintiff

In reality, virtually nothing about being a personal-injury plaintiff is easy.

I first started writing this column in my head a couple of years ago as I watched a young woman get cross-examined on her use of birth control after her husband’s death. The woman lost her love in a preventable workplace accident and was left to care for their young children alone. A couple of years after her husband’s death, the widow met a man and they started dating. She eventually married that man and began to find happiness once again.

At trial, the defense grilled the woman on the new relationship and specifically her use of birth control. While her children weren’t present for the trial, the woman’s mother, the court staff, and the jury listened on as uncomfortable question after uncomfortable question was posed. All of these highly personal questions and accompanying answers were dutifully taken down by the court reporter and eventually became part of the record. The young woman answered the barrage of questions with a grace I’m not sure many of us could have mustered at that moment in time.

Pop culture often gobbles up truth and regurgitates fiction. The story of the personal injury plaintiff is an example of such regurgitated fiction. Pop culture has tried to convince us that being a plaintiff is a pretty good gig. You get a little banged up. You run out and hire a lawyer that you see on TV. You sit back and wait for a big check. It’s a free ride for those willing to “take advantage” of the system. It’s lollipops and unicorns with a pot of gold waiting at the end of the rainbow.

In reality, virtually nothing about being a personal-injury plaintiff is easy. It’s hard to overstate the profound impact that an unexpected injury and/or death can have on a family. In the aftermath of a serious loss, psychologists tell us that most of us begin working through the 5 Stages of Loss and Grief:

  • Denial
  • Anger
  • Bargaining
  • Depression
  • Acceptance

The personal injury plaintiff is left to work through these stages while simultaneously participating in an adversarial process that is completely unnatural to the way in which we grieve as human beings. It’s an adversarial process in which the integrity of the victim is fair game.

Gathering information about the plaintiff and/or deceased through discovery is part of the process. Medical records. School records. Employment records. Tax records. Criminal records. Marriage records. Facebook. Twitter. Private investigators. An injured plaintiff becomes an open book.  But this reality can be difficult for “normal” people who are thrust into the system after great loss to accept.   For many a plaintiff, paranoia often begins to accompany anger in the stages of grief that they must work through.

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Using the information collected through discovery to conduct a stringent cross-examination of the plaintiff is well within the rules. But it’s not a particularly fun or easy experience for a plaintiff after a highly traumatic event.

It can be difficult for a young man who sustained 3rd degree burns to a majority of his body to articulate to a group of strangers how he wrestles with thoughts of suicide on a regular basis. It can be difficult for that man to understand why he has to field questions about seemingly trivial issues such as his academic struggles in high school or a bad break-up with a girlfriend. But dealing with those types of questions becomes part of the injured plaintiff’s world. That reality leads a lot of plaintiffs to begin questioning themselves, which in turn leaves them perpetually stuck in the stages of anger and depression.

A case is exponentially more difficult to resolve when a plaintiff is trapped in the stages of denial, anger, or depression. Defense attorneys who want to settle difficult cases for their clients face the tough task of vigorously representing those clients in ways that don’t contribute to the plaintiff becoming trapped in those dangerous stages.

For the plaintiffs’ lawyer, cases are ideally tried or settled at the crest of the final stage of acceptance. In addition to the legal mechanics of written discovery, depositions, and motion practice, one of the most important jobs of the sinister, rotten, no good plaintiffs’ lawyer is to help the client navigate through the stages of grief over the course of a case. Don’t be confused: the plaintiffs’ lawyer’s desire to help the client come to the final stage of acceptance stems not only from the heart but also the head. The plaintiffs’ lawyer understands that there’s a certain degree of plaintiff peace and clarity that no amount of pre-trial preparation or legal maneuvering can substitute for or replace.

Good lawyers on both sides of the aisle acknowledge, and at least attempt to understand, the emotional realities in which seriously injured plaintiffs find themselves. Great lawyers understand how these ever-changing realities for the plaintiff shape the dynamics of the case at any given moment in time. The best lawyers anticipate how their strategic moves will affect this fluid dynamic.

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A plaintiff’s life is a little darker than rainbows, lollipops, and unicorns. Plaintiffs often find themselves trapped in the darkest stages of grief while simultaneously engulfed in a highly adversarial process. Those within the legal profession who embrace pop-culture fiction and brush aside the emotional realities of the plaintiff do so at their own peril.


Jed Cain is a trial lawyer and partner with Herman, Herman, & Katz, LLC in New Orleans, Louisiana. Jed writes about family, the law, and Louisiana current events at Cain’s River. He can be reached by email at jcain@hhklawfirm.com.