30 June 2014 | | Trial

injury of PTSDBy || A n t o n i o M . R o m a n u c c i a n d A n g e l a P. Ku rt z

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Injury of PTSD Like war veterans, fi rst responders can develop post-traumatic stress disorder from experiences on the job. Lawyers must understand their illness and needs to convey to jurors how devastating PTSD can be.

Imagine feeling out of sorts for most of each day, even when per-forming your usual routine or spending time with family or friends. Now, com-bine that feeling with extreme anxiety, fear, depression, isolation, or always being misunderstood. For people diag-nosed with post-traumatic stress disor-der (PTSD), any human interaction can feel life threatening.

PTSD is usually triggered by events that are outside the normal experience, are traumatic, and cause or threaten physical harm. Since 2001, of the 2.6 million personnel deployed to Iraq and Afghanistan, 13 percent to 20 percent have returned home with PTSD.1 While the frequency of PTSD diagnoses in the military has helped bring this issue to light, studies have also found compa-rable rates of PTSD diagnoses in fi rst responders. One study published in the American Journal of Psychiatry found that 13 percent of the responders to the Oklahoma City bombing continued to suffer from PTSD almost three years after the incident.2 Other studies have found that between 17 percent and 22 percent of workers whose jobs involve repeated exposure to traumatic events, such as fi refi ghters and police o� cers, suffer from PTSD.3 Disaster workers who are exposed to a traumatic event, such as a plane crash, have a 16.7 percent rate of PTSD.4 This high rate compares to a 7 percent to 9 percent lifetime aver-age across all professions.5

To meet diagnostic criteria for PTSD, four characteristic symptom clusters must be present for at least one month after a traumatic event, and the symptoms must cause impairments in a person’s daily functioning.6 The four clusters are identifi ed as an exposure to a traumatic event that involved actual or threatened death or serious injury, reexperiencing (recurrent thoughts, nightmares, fl ashbacks, distress), avoid-ance (detachment, inability to recall the

event), and hyperarousal (anger, irrat-ibility, difficulty concentrating). Fur-ther, depression, impatience, distrust, disillusionment, withdrawal, avoiding certain places or events, guilt, and sleep disturbances are also hallmark indica-tors of PTSD.7

Do not overlook the interplay between traumatic brain injuries (TBIs) and PTSD. Many brain injuries are caused by physically traumatic events, such as motor vehicle accidents and combat, and these events are also known precipitators for acute anxiety and stress disorders, including PTSD. Although not fully understood, the association between TBI and PTSD has received widespread attention because the recent wars’ “signature injury” is TBI caused by blasts, and many of the injured service-members are also diagnosed with PTSD.8

Pretrial PreparationThe first step in any attorney-client relationship is the initial interview. But for someone with PTSD, even basic communication can be impaired. Feel-ings of anxiety, depression, avoidance, or anger may influence your client’s outlook regardless of whether the trau-matic event is related to his or her legal issues. The client might have a general distrust of others, be willing to quickly forfeit legal rights out of guilt or anger, and have problems with concentration.9

Communication about the traumatic event itself may be severely impaired—it is not uncommon for PTSD su� erers to consciously or unconsciously avoid remembering the trauma or for them to experience fl ashbacks and panic-like symptoms when trying to recall the event.

Attorneys must be patient and under-standing with a PTSD client and tailor services and actions to the person’s symptoms and needs. You must pick up on the client’s verbal and nonverbal cues and detect when a line of questioning

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P r o t e c t i n g T h o s e Wh o S e rv e | | The Invisible Injury of PTSD

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has gone too far. Employ the listening method. The more you allow the PTSD client to talk to you uninterrupted, the more likely you are to discover informa-tion about liability and damages.

In addition to speaking with the cli-ent, you should meet with friends and family at the initial interview or shortly after. PTSD clients are not always the best historians and typically underplay their hardships. This is especially true if the client is unable to communicate important facts about the case. Obtain multiple factual accounts from di�erent sources, even if the information is based solely on inadmissible hearsay. Even if the legal issues are unrelated to the cli-ent’s diagnosis, an understanding of the event and the nature of the symptoms can strengthen the attorney-client rela-tionship and make the client feel more comfortable.

There is no one-size-fits-all method to prepare a PTSD su�erer for the ardu-ous litigation process. People handle the wide range of symptoms in different ways. Apart from seeking professional treatment, clients with PTSD may also turn to unhealthy coping methods, such as self-medicating, drinking too much, and other dangerous activities.10

First, determine how your client copes with his or her symptoms. Does the client get angry when talking about seemingly regular topics? Is the client comfortable in high-pressure situa-tions, or does he or she shut down when

nervous or afraid? Has the client com-pletely suppressed the memory of the traumatic event?

The answers to these questions will help you develop a road map for approaching your client during written discovery, depositions, and trial. If you suspect that your client is coping in an unhealthy way, you should obtain the names of mental health resources.

In most litigation, your client will provide live testimony for the first time during his or her deposition. By then, hopefully, the client has grown to trust you. But at the deposition, the plainti� will need to interact and communicate with strangers, often in an unfamiliar o�ce and sometimes in another city or state. This foreignness, coupled with the normal stress of giving a deposi-tion, could trigger a new wave of PTSD symptoms, even if the client has man-aged the symptoms in prior meetings and throughout written discovery.

You shouldn’t assume that your client will be his or her “normal” self. Make the extra e�ort to ensure he or she feels as comfortable as possible. Try to schedule the deposition in a location the client is familiar with. Coordinate with oppos-ing counsel to allow a friend or family member to be in the o�ce (even if not in the deposition room), and take fre-quent breaks throughout the question-ing. You must be able to pick up on cues from your client that the deposition is becoming unbearable or that symptoms

are worsening. Never forget to be an advocate for your client and object to any harassing, improper, or confusing questions.

Trial ConsiderationsWhen approaching trial with any client su�ering from mental health issues, ask yourself whether the client can handle it. Are terrible symptoms going to be trig-gered by long days in the courtroom, the presence of the judge and jury, the wit-nesses cycling in and out, and the hours of testimony? In some cases, the PTSD client will have worked out a method to cope with the stress of litigation. In other cases, the client might not be able to be present for any part of the trial.

By this stage of the litigation, you should be familiar with how your client reacts to stressors, how the symptoms have improved or declined, and whether he or she will be able to testify compe-tently. Make every e�ort to give your cli-ent face time with the jury, even if the introduction is brief.

Jurors benefit from seeing a real person rather than just hearing a name or seeing photos. Even if your client is symptomatic on the day of trial, it’s wiser to allow your client to have a presence in the courtroom; you do not want the jurors filling in what they cannot see or hear on their own. However, if your client is going to cause a disturbance or simply cannot handle the courtroom atmosphere, make an exception.11

When your client has PTSD, the most important aspect of voir dire is to teach the jury about the silent injury—the injury that changes lives, upends careers, and destroys families, even if evidence of it is scant.

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The primary focus during voir dire is to gather useful information about the jurors and to uncover the predisposi-tions that shape juror decision-making. This is especially true when dealing with invisible injuries. Jurors jump to strong, sometimes unshakeable conclusions after the first minutes of trial. Without any direction, many of these conclusions can be destructive to your case.

Voir dire is also an opportunity to build trust and rapport with the jurors and to begin persuading them by fore-shadowing your themes and creating positive impressions of your client’s case. When your client has PTSD, the most important aspect of voir dire is to teach the jury about the silent injury—the injury that changes lives, upends careers, and destroys families, even if evidence of it is scant.

Most people have not been diag-nosed with PTSD, so you must compare the injury to an experience the entire venire can easily relate to. Ask questions as simple as “Do you believe someone when they tell you that they have a head-ache?” followed by “Have you ever had a headache?” and “Has anyone ever not believed your complaint of headache?” This exploration will expose any nega-tive opinions that might influence the jurors’ decisions.

It is just as important to expose opin-ions your venire has about the direct injury itself. Because it is an invisible injury and many people still have the ill-conceived notion that a diagnosis of PTSD is transient and not permanent, awards for compensation can vary widely. Therefore, it is imperative to explore questions such as:§ Have you ever worked with a per-

son who su�ered from PTSD or a brain injury?

§ Have you ever personally taken care of a special-needs child or adult?

§ Have you ever had a family mem-ber who has been a resident of a

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nursing or rehabilitation facility?§ Have you or anyone you know

used crutches, canes, walkers, or wheelchairs?

§ What if the law as instructed to you by the judge was against your conscience—would you still follow the law or would you go with your conscience?

§ Would there be a limit as to how much compensation you would award a person who was injured but also has mental disability?Depending on the venire’s answers to

the above questions, it will be critical to follow up with questioning designed to determine whether there are strong feel-ings that elicit bias or prejudice against your client.

In addition to directly asking about PTSD, small hints and repeated cues in your questioning can keep jurors focused on the symptoms and injury that under-lies everything your client does or says. Because the invisible injury is impossible to quantify in terms of dollars, you must convince the jurors of the noneconomic damages—pain, su�ering, disability, and loss of a normal life—to obtain a verdict that adequately compensates the client. To achieve this, create a theme that will resonate with the jurors and help them

see your client’s invisible wounds. The best way to develop a theme is to present your case to a focus group and test out the various strengths and weaknesses to determine what inspires compassion and understanding.

The Role of ExpertsThe plaintiff ’s testimony, on its own, typically can establish the bases for both liability and damages. This tes-timony is bolstered by additional fact witness testimony, treating doctors’ testimony, physical evidence, and expert testimony. If plainti�s cannot talk about their trauma, do not cope well with the pressure of testifying, or do not under-stand the extent of their symptoms, you must rely heavily on other witnesses and evidence.

It is critical to determine whether your client’s treating physicians, psy-chologists, or mental health profession-als will be able to convey the e�ects of PTSD to a jury in a manner that is eas-ily understood through the use of plain language without minimizing its e�ect on the victim. If not, you must retain another expert witness early in the litigation. This is especially true if you would like your expert to examine the plainti�; many people with PTSD are

uncomfortable with or distrustful of strangers. You do not want to scramble at the last minute to retain a competent expert, leaving the relationship between your expert and your client undevel-oped. The more involved expert wit-nesses, who conduct a thorough exami-nation and take the time to interview not only the victim but also family members and loved ones, are more persuasive and reliable to a jury.

Do not underestimate the power of a non-retained opinion witness. At trial,

MORE ON POST-TRAUMATIC STRESSDISORDER

Visit the Web pages below for additional information.

AAJ SECTIONFederal Tort Liability and Military Advocacywww.justice.org/sections

AAJ LITIGATION GROUPTraumatic Brain Injurywww.justice.org/litgroups

LITIGATION PACKETTraumatic Brain Injurywww.justice.org/litigationpackets

AAJ EDUCATION PROGRAM2013 Annual Convention: Traumatic Brain Injury Litigation Group CLE Programwww.PlaybackAAJ.com

AAJ PRESS Litigating Brain Injuries (AAJ Press/Thomson Reuters)www.justice.org/aajpress

It is critical to determine whether your client’s treating physicians, psychologists, or mental health professionals will be able to convey the effects of PTSD to a jury. If not, then you must retain another expert witness early in the litigation.

Trial | | June 2014 35

the plainti�’s treating physician, psy-chologist, or other mental health pro-fessional can support your case theme through concrete evidence. Jurors often trust independent experts more than the “hired guns.” In addition to questions you usually ask treating professionals, emphasize the experts’ understanding of all aspects of PTSD: the cause, symp-toms, treatment, and permanence. Most jurors can understand a broken bone or even the illusory concept of pain and su�ering; the same cannot be said about invisible injuries like PTSD.

Many defense experts claim the plainti� is feigning symptoms or “malin-gering.” You need to present solid proof that your client’s injury is real, such as positive imaging examinations, periods of hospitalization for the trauma, psy-chotherapeutic treatment, and even a side-by-side comparison of changes in life and activities before and after the traumatic event. You can then cross-examine the defense expert on all the points laid out by your evidence.

Don’t be timid; expose as many errors and problems with the malin-gering theory as possible. Point out that the plaintiff reported symptoms long before he or she sought an attorney, or that patients with PTSD usually under-play symptoms rather than exaggerate them, or that extreme distrust and with-drawal are common symptoms of PTSD that cannot be transgressed in a one-hour meeting. There are always weak points to the defense’s theories—use your independent and retained experts to find them.

Understanding your client’s needs and how to convey them to the jury, a carefully crafted theme, and strategic questioning of the experts are key to a successful case. By the end of closing arguments, you will have convinced jurors that your client’s traumatic event and subsequent PTSD are so over-whelming that they act as an anchor

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that hinders your client’s ability to live a joyful, normal life.

Antonio M. Romanucci is a partner at Romanucci & Blandin in Chicago. He can be reached at aromanucci@rblaw.net. Angela P. Kurtz

is an associate at the fi rm. She can be reached at akurtz@rblaw.net.

Notes�1. Inst. of Med., Treatment for Posttraumatic

Stress Disorder in Military and Veteran Populations: Initial Assessment 1 at 39 (Natl. Acads. Press 2012), http://books.nap.edu/openbook.php?record_id=13364.

�2. Carol S. North et al., Psychiatric Disorders in Rescue Workers After the Oklahoma City Bombing, 159 Am. J. Psych. 857, 857–58 (May 2002).

�3. Michael S. Ja� ee et al., Posttraumatic Stress Disorder in Jonathan M. Silver et al.,Textbook of Traumatic Brain Injury 199–208, 200 (2d ed., Am. Psychiatric Publg. 2011).

�4. Carol S. Fullerton et al., Acute Stress Disorder, Posttraumatic Stress Disorder, and Depression in Disaster or Rescue Workers, 161 Am. J. Psych. 1370, 1371 (Aug. 2004).

�5. Ja� ee, supra n. 3, at 200. �6. Am. Psych. Assn., Posttraumatic Stress

Dis order, www.dsm5.org/Documents/PTSD%20Fact%20Sheet.pdf (2013).

�7. See Natl. Inst. of Mental Health., Post-Traumatic Stress Disorder (PTSD), www.nimh.nih.gov/health/publications/post-traumatic-stress-disorder-ptsd/index.shtml.

�8. Bob Woodru� & Lee Woodru� , Foreword in Jonathan M. Silver et al., Textbook of Traumatic Brain Injury xix (2d ed., Am. Psychiatric Publg. 2011).

�9. Bob Brown & Joe Lovelace, Veterans and PTSD: What Attorneys Need to Know, 73 Tex. B. J. 836, 837 (Nov. 2010), http://tinyurl.com/mynpd4a.

10. Je� rey Lewis Wieand Jr., Student Author, Continuing Combat at Home: How Judges and Attorneys Can Improve Their Handling of Combat Veterans With PTSD in Criminal Courts, 19 Wash. & Lee J. Civ. Rights & Soc. Just. 227, 228 (2012).

11. Although plainti� s generally have a due process right to be present throughout trial, judges have discretion to exclude plainti� s who will not be able to assist counsel in the proceedings or who will disrupt the trial. See e.g. Helminski v. Ayerst Labs., a Div. of Am. Home Prods. Corp., 766 F.2d 208, 213–17 (6th Cir. 1985); Morley v. Super. Ct. of Ariz. in & for Maricopa Co., 638 P.2d 1331, 1333–34 (Ariz. 1981) (en banc).

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