• General Motors loses a decision regarding the death of a 17 year old boy blamed on the design of one of its vans. Four million dollars is awarded for the boy’s death, but $100 million is awarded for punitive damages. A spokesman for GM explains the decision as the jury has acted on the "emotional" issues. Of course it will be appealed, and most likely reduced. But the adverse publicity and exposure to similar suits poses potential harm for GM well beyond the outcome of this particular case.
• A physician treats a patient successfully, utilizing alternative medical treatment. The patient is subsequently treated by more traditional physicians and develops problems, which these doctors then blame on the original physician. Patient sues the original doctor and wins an award well in excess of his malpractice policy, because the jury’s attention is focused on the controversy surrounding alternative medicine, rather than on only one to have helped the patient.
  
• A psychiatrist is asked to consult on a difficult patient with a long history of numerous physical complaints and serious psychiatric problems, including suicidal behavior as a child. He correctly diagnoses the patient and institutes appropriate treatment.
  
  
• The patient, who is charming, persuasive and highly capable of mounting a forceful case, insists that she is totally nonfunctional, denies her prior psychiatric history and claims that all her failures in her life , e.g. her marriage and her career, are consequent to the psychiatrist’s therapy.
  
  
• Her claims are purposely void of facts. The defense mounts a well planned, clear focused case. The jury, however, promptly disregards all the evidence and facts presented by the plaintiff’s personality and demeanor on the stand as the sole basis for their decision. The plaintiff wins one of the largest awards ever for a case involving a psychiatrist.
  
• An elderly man, with a history of drinking and a whiskey bottle in is pocket, walks into a car stopped at a red light. He falls down, claims that the driver struck him and asserts that he is irreparably injured unable to walk without a cane, and fearful of ever crossing a street by himself.

  
  A secret video recording shows him walking alone, miles from his home, without using his cane, blithely crossing busy streets while reading a newspaper, unconcerned about oncoming traffic. This videotape is played for the jury. The defendant’s insurance company, however, is sufficiently scared by this case that they direct their attorney to settle it in excess of several hundreds of thousands of dollars.
  
  Parenthetically, on the afternoon that his case is settled, the defense attorney, a young, healthy man, develops a cardiac arrhythmia for the first time in his life and is hospitalized. He later explains that the "aggravation" of this case precipitated his physical symptoms.
  
  Certain criminal cases, which increasingly seem to be the subject of sensationalism and violent public reaction, involve tremendously compelling emotional forces; e.g. the Rodney King trials and the Jeffrey Dahmer case.
  
  Such scenarios are an attorney’s nightmare. But these cases usually are not lost because of incompetence or insufficient preparation. They are lost because of factors outside the realm of traditional legal issues. This is the arena of the psychological.
  

Psychological Arena

Experienced trial attorneys are aware that psychological issues enter into the dynamics of the courtroom and can affect the outcome of a case. Most attorneys, however, are cynical about the importance of such factors, considering them too peripheral and too nebulous to warrant deliberate attention.

Taking psychological notions seriously is viewed as a waste of time or a distraction from the real business at hand. Attorneys prefer to avoid such intangibles, convinced that the desired outcome can best be realized if they diligently perform their customary preparation.

It may seem presumptuous for a psychiatrist, a layman in the world of law, to attempt to instruct established, successful attorneys in the area that constitutes the core of their profession – the work of conducting a trial.

There is no debate that in the courtroom the attorney is the expert. But a psychiatrist is an expert in psychological matters, and can offer understanding of the powerful emotional processes that operate in a group – such as the group assembled in a courtroom for the purpose of convening a trial.

It may be worthwhile for attorneys to reevaluate their understandings about the role of psychology in litigation. Fundamentally, courtroom battles are encounters of the psychological kind.

A significant psychological issue is present in many, if not most, cases, and it is almost certain to have an impact on the outcome of the case. When misused, the psychological component can determine the "facts" of a case and ultimately sway the jury’s decision.

To ignore the psychological element could be disastrous – regardless of how favorably predisposed the facts are for the attorney’s case, regardless how ready a grasp of the case’s intricacies a lawyer has or how thoroughly she has prepared witnesses, regardless of how skillfully direct and cross examinations are conducted and how elegant the closing summation.

Attending to the emotional element does not obviate the need to manage all the usual proceedings of a trial. But the psychological aspect must be addressed specifically and systematically at each phase.

There is a procedure for identifying the psychological component and for deploying it forcefully at trial.

Central Theme

For each case there is a single, unique Central emotional theme (CET) that ultimately controls the action in the trial. For example, the issue of personal responsibility could be the emotional theme of a medical malpractice case, or in a criminal case, the CET might be the issue of justice.

Like gravity, the CET exerts an impact on the jurors, the attorneys, the witnesses, the judge and the court’s stall. The CET can be identified and measures for working with it can be custom designed and incorporated as an integral part of the case’s general strategy.

Jury selection is the single most crucial point during the entire trial process to incorporate use of the CET. This is the sole opportunity the attorney has to choose jurors he believes can appreciate his client’s situation. Once picked, the jury’s basic reactions to all subsequent trial proceedings will be
Influenced by the main orientation of that group. Utilization of the CET guides the selection of jurors with greater specificity than can be achieved through the most detailed demographic surveys.

Use of the CET informs the presentation in court, from opening arguments through closing summary. It enhances the preparation of witnesses and guides the interactions with opposing counsel and with significant courtroom personnel.

Effective management of the CET in the courtroom is governed by four fundamental psychological principles describing the operation of all small group systems. The courtroom setting, after all, constitutes one example of a small group system.

The first principle asserts that whenever individuals interact in a group, they function as a single entity. The group acts in a coherent manner, transcending the inclinations and behavior of each separate, specific member. The group follows its own course, providing an underlying structure for the various activities carried on by each member, incorporating the strengths, abilities, motivations, aspirations and shortcomings of the individual members.

The group established in the courtroom comprises the jurors, the attorneys, the witnesses and the judge.

The second principle affirms that a group has two basic tasks, first and foremost, the group strives to fulfill the basic aim for which it was originally constituted. For the group, the first and most explicitly stated responsibility is that of rendering a just decision.

But a group almost always has a second, equally compelling, often unarticulated and partially obscured responsibility – the need to address and resolve and underlying emotionally laden issue. For the group, in the courtroom this underlying emotional focus is the CET of the particular case.

Not infrequently, the two primary tasks of a group conflict with each other. When this happens, it is the emotional issue that will exert the dominant influence over the group’s conduct. If continued unresolved, the emotional issue can seriously jeopardize the group’s functioning and productivity.

The third principle declares that it is possible to constructively affect the process and actions of the group only by addressing the CET. The CET must be identified and appropriately engaged in order to have any meaningful impact.

The fourth principle maintains that a group always has a leader who speaks for the whole group, who wields the most authority and who consequently has the greatest influence on the momentum and direction of the group’s action. The member of the group who most directly engages the underlying emotional issue becomes the leader.

The leader in the courtroom is the member of the group who most strongly champions the CET; usually one of the attorneys, at times the judge, or on occasion, one of the witnesses.

The attorney who most effectively utilizes the CET becomes the leader. He gains the greatest influence on the group; and hence on the outcome of the case. The jury constitutes a crucial subgroup of the larger courtroom group. During its deliberations, the leadership of the jury is modeled after the person that maintained leadership in the courtroom.

The following vignette demonstrates the use of the CET in a specific case. This particular litigation involved the defense of medical malpractice suit, in which I served as a consultant. But this method is applicable to plaintiff’s causes, as well as to the entire gamut of cases that reach trial.

CET in Action

A malpractice suit was brought against a competent, respected internist charging him with wrongful death of a new patient. This patient was a young, hardworking, supportive husband and father of several young children. He had contracted a common ailment to which he initially paid scant attention. His condition unfortunately worsened, necessitating an emergency hospitalization. Tragically, despite aggressive treatment and initial improvement, the underlying disease process had so progressed that the patient ultimately deteriorated and died.

After an initial review, the defense attorney felt that the emotional undercurrent of this case was extremely powerful, and could be manipulated to unjustly prejudice the case against his client. He needed a plan to counter the anticipated abuse of the psychological issue, to be incorporated into his overall case strategy.

The first step was the identification of the CET, which was determined in this case to be the issue of helplessness, a theme that expressed the emotional crux of the case. The physician was essentially helpless to save this patient. Despite the number of laboratory tests, despite additional procedures that one could claim "should" have been performed, and despite the best efforts of an army of physicians, all would have inevitably provides equally impotent in saving the life of this particular patient.

In other words, for all the noteworthy scientific advances that have been made, medicine was still too primitive (helpless) to have altered the outcome of this unfortunate man.

It was the opposition’s contention that medical science, and by extension the physician, was not at all helpless in treating this patient. It was alleged that the physician wantonly failed to perform routine tests which would have provided a timely warning of the patient’s impending crisis.

This basic strategy for trail was formulated in terms of whether it helped promote an appreciation of the helplessness that the physician faced during the ordeal trying to treat this patient. This theme guided all our work throughout the trial proceedings enabled us to turn opposition’s manipulative attack to an ever increasing advantage for our case.

Jury selection was conducted around this central notion of helplessness. In his introductory remarks to the pool of potential jurors, defendant’s attorney first introduced the idea that this case resolved around this issue. Prospectives were evaluated as to how they responded to the experience of helplessness. Each candidate was asked if she was ever involved in a helpless situation, and if so, how she handled it. Typical response patterns included individuals who became angry or punitive when helpless or who tried to avoid and deny the experience altogether. By contrast, other potential jurors handled helplessness more constructively by initially acknowledging the uncomfortable and undesirable experience, and sought a more positive and forward moving resolution.

Any potential juror who had encountered a helpless situation and who had dealt with it in a productive manner, or any juror who could embrace such a response to helplessness as the preferable course of action, was a person who would be fair and understanding of our client’s situation. Candidates who were too frightened by helplessness, who were unable to give up their anger at such an experience, or who denied the possibility of being in such a situation would be unable to appreciate the facts our client’s position.

After repeating this exercise with each juror, the entire pool was increasingly oriented to this theme as the pivotal focus of the case.

The CET automatically came into play throughout the action of the trial. It was inevitable that everyone in the courtroom (the group) wold confront the central experience of helplessness during the trial. The opposing attorney was well known for his successful, fiercely aggressive, intimidating and manipulative style. In previous cases, he had an overwhelming impact on an entire courtroom. Including the judge, the jury, the witnesses, even the defendant’s attorney. Typically, he reduced a witness to an intolerably helpless state. Their only path of escape was to concede his conclusions in order to be granted a reprieve from further onslaught, e.g., to be released from the witness stand.

In these past cases, such performances had the disastrous effect of manipulating the entire court into a position of extreme helplessness. As part of the group, the jury experienced the same intense anguish and discomfort felt b everyone in the courtroom. The jury also felt the same imperative to flee such distress and quickly absorbed the less repeatedly demonstrated by each witness. The jury learned it could avoid the threat of the attorney’s disdainful, immobilizing wrath by complete acceptance of his position. Simple extrapolation translated this into large awards for his clients.

Defendant’s attorney was fully prepared to do battle. He established leadership in the courtroom by identifying and acknowledging this central position of helplessness and most crucially, by helping the group to come to terms with this experience in a constructive manner.

In his opening statement, defendant’s attorney elaborated the theme as the focus around which the entire trial would unfold. He prepared his witnesses for the encounter with plaintiff’s lawyer. It was explained to them that they might find their efforts to "tell the truth" seriously hampered by this lawyer’s style of assault, and that they should prepare for the possibility of feeling genuinely helpless under the onslaught of the defense’s cross examination.

Defendant’s attorney consistently confronted the opposing attorney around the issue of helplessness. Each time the other lawyer attempted to put anyone in the courtroom in a helpless position, our attorney wold make an effective, neutralizing intervention. For example, because of the enormous reputation and forcefulness of the opposing attorney, even the judge tended to be bullied by him, and to a degree found himself helpless. Plaintiff’s lawyer frequently told the court what it should and should not do. Defendant’s attorney just as frequently supported the judge as having the sole authority to determine what constituted appropriate conduct in the courtroom. Consequently, defendant’s attorney helped the judge to avoid be placed in a helpless position, so that he could constructively and responsibility perform his duty.

When the opposing lawyer was especially battering of one of the defense’s witnesses, counsel for the defense intervened to make the entire courtroom very aware of the opposition’s attempts to force the witness into a helpless position.

All of these efforts had a cumulative, increasingly powerful effect. As plaintiff’s lawyer sensed his position slipping, he intensified his attack, trying to bulldoze the courtroom into a state of helplessness. This only furthered our strategy of highlighting the angry, assaultive, unproductive and unjust intention of the plaintiff.

Finally, in summation, defendant’s attorney reminded the jury that the struggle to save this man was "a battle no doctor can fight for anyone. That’s a battle only a person’s body can fight." He repeatedly explained to the jury that they "do not have to remain in the dark" in terms of coming to an understanding about what happened to this man because they had available the testimony of several medical experts to inform them. In other words, even though modern medical science was unfortunately helpless to save this patient, the jury was nevertheless "not helpless" to review the statements of experts to learn and to understand what actually happened to cause this man’s death.

The jury was not intimidated or bullied by the plaintiff’s attorney. It was not rendered helpless and was quite assertive in its decision making. The verdict was for the defendant.

David M. Yamins, M.D. is an attending physician in the department of psychiatry at Maimonides Medical Center and has served as an expert witness.