Jury Openings in MedMal Cases

I start by commending to you 4 articles which have been written by OTLA members for OTLA members.

1. An Overview of Objectives and Strategies for Persuasive Jury Openings – Roger Oatley, January, 1999;
2. Empowering the Jury – John McLeish, May, 1994;
3. Hidden Persuaders in Jury Trials – Paul Jewel, 1994;
4. Opening to the Jury in a Civil Case – Bruce Hillyer, date unknown.

In particular, I am indebted to Roger Oatley who I believe to be the seminal jury lawyer in the province of Ontario. It is no surprise that Butterworths approached Roger to publish a book on jury openings. This paper will become moot and can then be thrown out.

Objective
The objective of the jury opening is to persuade the jury that they should award your client lots of money. Anything else that you wish to get from the jury opening flows from that simple objective. You want to be seen as credible, you want them to identify with the plaintiff, you want to empower them. We have heard all of these comments in the past. However, they all flow from a single all encompassing objective – give the jury something they can use so that they will fairly award the plaintiff lots of money.

Why is the Jury Opening so Important?
There is no higher drama in civil litigation than the first lawyer addressing the jury in his or her opening. The plaintiff’s lawyer will be the first person who will actually tell the jury something about why they are there. Remember the jury knows next to nothing. They are trotted in and out of the jury box like cattle. They likely feel that they have absolutely no control over the next few weeks of their lives. They will be in awe of the “trappings” and formality of justice. You will be the first person who can actually allay their fears and answer all of their concerns. You can be the one that they can finally say “gee, finally someone told us what we’re doing here”.

High drama is critical to understanding the purpose of jury openings. Everyone remembers dramatic events. What were you doing when Paul Henderson scored in 1972? How did you feel when you first heard Martin Luther King’s impassioned speech “I have a dream?” Do you remember shedding your first tear watching your wife deliver your first child?

On the other hand, what did you have for breakfast yesterday? When was the last time you bought underwear and when did your last client tell you that they don’t like taking medication. Drama equates with memory. You have been given a tool to assist the jury to commit things to memory. That tool is the impact of drama.

By that I do not mean that you have to make an impassioned plea in flowering language that only Martin Luther King and Roger Oatley could use. However, through simple tools, the jury can be given a means by which to commit things to memory.

Your opening takes on even more importance because my experience tells us that the defence will either not open until all of the plaintiff’s case is in or they will open so weakly as to constitute a non-opening. This defence tactic will allow you to take advantage of the concept of primacy – that is that a jury will remember things that it hears first.

Of course, in almost all cases, you will be also addressing the jury in closing last and can take advantage of the concept of recency as well. You now have the double-edged sword of primacy and recency with which to stab the defendant in the heart.

Goals and Strategies

(1) Establish Credibility
Some of us establish credibility from our rapport more easily and naturally than others. However, we do have enough control over events as to maximum our ability to appear credible with the jury.

First and foremost is the cardinal rule that you must not read from written text. At first blush, this is a very scary proposition. However, once accomplished, it is well worth it. I well remember the first time that I did a jury opening with only marginal reference to my notes. I established an instant “connection” with the jury that I had not before experienced. My language appeared more natural and although I overlooked topics I had wanted to comment on, the connection and credibility I established exceeded the value of any lost content of my opening. Jury cases are more about perception than facts and the jury’s perception of you in addressing them without notes is important.

Try to identify with the jury. It helps if you and they are part of the same team. We can do that by talking about the job “we” have in ensuring justice is accomplished. We can do that by saying “we” will hear when John tells us that …. We can tell them that “you and I share an awesome responsibility – to ensure that justice is done…”

Establish with them, concerns and fears. “Just as you are fearful of the job that you are about to undertake, I can tell you that I’m scared just being in front of you. I’m scared because I’ve been entrusted the responsibility of presenting this case as fairly and as well as I can and I want to make sure that I don’t fail in my responsibility”.

(2) Meet the Plaintiffs
You want to acquaint the jury with the plaintiffs. Of course this will involve simply telling a story. However, in the telling of the story, it is helpful if you can characterize the plaintiff as being a tragic hero. You will want to make the plaintiff vulnerable to the whim of the jury so that the jury will know how completely and utterly dependent the plaintiff is on their concept of fairness and kindness. This will motivate and empower the jury.

(3) Villanize the Defendant

Just as you are trying to make the plaintiff a sympathetic figure who the jury will instantly like and have compassion for, you want to institutionalize the defendant and make him or her appear unlikeable. You do not want the jury to feel sorry in any way for the defendant. In this way, they will be motivated to help the plaintiff. In some cases and possibly medical malpractice cases, it is more difficult to villanize the defendant than to do that in non-medical malpractice cases. For example, the counsel for a doctor will often say that what Dr. Smith did what was Dr. Smith thought he should do under those circumstances. Other doctors may choose to do things differently. Doctors are given some latitude and are permitted to exercise some judgement in taking various courses of action. While it is well and good for Dr. Jones and Dr. Ross to say that Dr. Smith shouldn’t have done it, they will have to concede that there is a range of opinion on what course of action to take. You will hear from Drs. A and B that in fact their judgement was more in line with Dr. Smith.

Are doctors to be criticised for every decision that they make?

A counter to this argument might be as follows:

“Ladies and gentlemen, I am not certain but you may hear Dr. Smith say that this case is about a difference in judgment. Not all doctors would do the same things under certain circumstances. Doctors have to be given some latitude they will say in making a diagnosis and in treating a patient.
Ladies and gentlemen, I say this case is about taking responsibility. This is not a case about differences and how one exercises judgment. It is plain and simple a case of responsibility and Dr. Smith is failing to accept responsibility for his mistake”.

The theme must be simple and should be capable of being captured quickly and easily.

(4) Inoculate Your Weaknesses
Identify the major weaknesses to your case and give the jury a method of dealing with these weaknesses.
This can be accomplished largely in two ways. You can simply use logic and tell the jury why it isn’t a weakness. For example, the defendant will often say that:

“Ladies and gentlemen, the plaintiff comes before you seeking large sums of money for his income loss. Yet, the evidence will establish that the income tax returns show that he earned no more than $10,000.00 per year in the 5 years preceding the accident”.

You may wish to say something like:

“ladies and gentlemen, you will hear that John is going to be asking for hundreds of thousands of dollars for his loss of income. John will also tell us that when he filed his income tax returns, he didn’t disclose his income because he didn’t want to pay taxes. We’ll hear John tell us why he did that. Now regardless of whether or not John declared income on his tax returns, His Honour will tell you that it is your job to establish what income John has actually lost because of his accident and this case has nothing to do with whether or not John filed income tax returns”.

The other way to deal with weaknesses and inoculation of them is the concept of distraction. This is similar to but somewhat different than simply explaining it away logically. Allow the perception to predominate that the defence is merely distracting from the main issue – “what compensation does John deserve?”.

As an example: Now you may hear from the defence that John filed tax returns and that he didn’t declare his income and that he can’t be losing money.

You may think to yourself that that’s really distracting from what I’m being asked to do and that is to establish what he really has lost because of the accident. You may ask yourself why is the defendant distracting us from the main issue.

The goal is to have the jury think of the concept of distraction whenever it sees the defence attempting to do something which you have told them that the defence will likely attempt to do in the course of the trial. At that time, in closing you can say:

“Now I told you that the defence may try to distract you from the main issue and they didn’t disappoint me”.

(5) Empowerment
As you know, this goal and strategy is central to the objective of any opening. That is to say, you must empower the jury with the concept that they alone are going to decide the plaintiff’s future, that they should think very carefully and compassionately in their deliberations because all that John or Betty has left is as a result of what they’re going to recognize. Ensure that they understand the magnitude of their decision making power.

A useful tool in empowering the jury is the use of questions and silence. Silence is one of the most effective means of communication. Another is the use of rhetoric. The jury will be internally answering questions particularly when you give them an opportunity by pausing. This is a particularly useful time to use questions and pausing is when the defence is taking an unreasonable position. A prime example would be a defendant denying liability in a motor vehicle accident case.

“Ladies and gentlemen of the jury, you’ve heard the evidence of how this collision happened. Ask yourself, is there any question in this case but that the defendant is responsible completely for this tragedy? Do you believe it was reasonable for the defence to deny liability? Is the defence being honest with you in trying to have you believe that they are not 100% responsible. Now you heard John Smith say that he wasn’t going that fast. Do you believe that? Or Dr. Samiano says that he checked on Bob Smith every day after surgery and didn’t see any signs of infection. Do you believe him? Do you believe him?

In asking them the question you are reinforcing the fact that the jury need not accept the witness’s answer just because it was given under oath. This is particularly important in a medical malpractice case where a jury might take offence to you saying outright that the doctor is a liar. Depending upon the tenor of the evidence given by the doctor and whether or not he or she is a likeable person, you may wish to simply ask the question of the jury. Asking the question and allowing them to come to their own conclusion will have more impact on them than you telling them what conclusion you would like them to know. It will empower them.

(6) Theme Building
Every case has to have a theme. The theme has to be short, to the point and catchy.

“Ladies and gentlemen, this is a case about Dr. X’s decision to experiment on Sally. It’s about Sally’s right to have control over her body and what is done to her body even by a doctor. When it comes down to it, this case is about RESPECT”

or

“Sandy didn’t know when she took her little girl Amy to the hospital on July 8th that Dr. Samiano would send her daughter home without even looking at her. Sally trusted Dr. Samiano to help her and he failed. Ladies and gentlemen this case is about BREACH OF TRUST”.

A theme is more identifiable if it is mixed with some basic facts. It is for that reason that I have given a slight amount of detail in my opening. In this way I can mix my theme with my job of having the jury meet the plaintiff.

“On May 1, 1993, Debbie Taylor went to her doctor for advice and treatment. What she received instead was an invasive, needless procedure that she didn’t ask for. She had no idea what she was in for because Dr. Bederworm didn’t tell her. This case is about maintaining control over your own body”.

The theme must be capable of being remembered.

A short dramatic theme will also work to empower the jury, to motivate them, to effect change for the public good and not just for this plaintiff.

“Ladies and gentlemen this is about having control over your own body. In your deliberations consider you will want to send a message to the medical profession. They can’t take control over us”.

Theme building provides drama and gives the jury a tool for committing important things to memory. In the two examples cited above, any piece of evidence that they have or that they hear relating to keeping control over one’s own body or breach of trust can be committed to memory. After all, the jury will remember very little of the thousands and thousands and thousands of sentences that they hear over the course of the trial. If you will, the initial theme will be the fly paper to which the jury can attach little tidbits which they find important.

We have all heard that a good jury opening is about telling a story. Have a main character. Tell the jury what struggles the main character goes through and tell the jury how the struggle ends up. At the end, you hope to have a tragic hero. He or she will be a tragedy by reason of the defendant’s careless conduct, and will be a hero when the jury recognize the plaintiff’s misfortunates and does justice.

(7) Use of Language
The biggest piece of advice I could give is speak in your own language. It took me five years to realize that I would never be able to speak as eloquently as Roger Oatley or Dan Dooley. I don’t think it matters (at least I have to tell myself that).

Use the present tense for drama. It will connect with the jury more readily. Refer to the plaintiff by their first name and call the defendant the defendant to distance the jury from him or her.
Repeat important concepts.

(8) Demonstrative Aids
Need I say more? There is little worse in life in sitting inches away from a lawyer who is to drone on for 45 minutes to an hour. I want pictures! I want movies! I want to see things and not hear words!

Attached as appendices are openings in 4 cases.

Cubello Opening
Mary and Fulvio Cubello will never be the same. Neither will their son Brendan. Maimed, almost killed on July 15, 1995 by the careless and needless actions of the defendant, Guidolin.

Picture yourself as a member of the Cubello family that day. It starts off as any other day for Fulvio who owns his own landscaping business. He starts the day early, rising at 6:00 a.m. He is gone by the time Mary gets up at 7:00 a.m. Brendan is 4 and she prepares him breakfast. She takes him to the babysitter for the day because Mary goes off to work at MacIntyre Media in Brampton where she works as marketing manager. Fulvio and Mary put in full days as we all do. Mary comes home and prepares dinner and the family decides to go to Upper Canada Mall in Newmarket to pick up some supplies for the house. It has been a very hot and humid day. Brendan sits in his car seat in the front seat while Mary drives and Fulvio falls asleep in the back seat exhausted from working all day in the hot weather. Mary is now going west on Highway 89, the main road heading to Newmarket from Tottenham, going the speed limit of 80 kilometers per hour.

The roads are dusty but dry. Air conditioning keeps the car cool and comfortable.

With Fulvio asleep and Brendan nestled securely in his booster seat, Mary has a rare opportunity to reflect on her life. Her busy schedule doesn’t permit her this opportunity very often. Mary thinks that life is good. She is happy working in a small family owned business. In fact she is made to feel part of their family.

Fulvio has been a good faithful husband for 12 years. They are comfortable in a home with a mortgage hoping to pay it down. Each is happy with their jobs and earning decent money. They enjoy good health and greatest of all they have the joy of Brendan who at age 4 was hopefully soon going to have a brother or sister. As all mom and dads do they share great expectations for Brendan and whatever brother or sister he might have.

6:25 p.m. on July 15th was the last minute Mary would ever have these thoughts. At 6:25 p.m. the defendant, Guidolin, is going eastbound on Highway 9 and she enters the westbound lane hitting Mary’s car head on. Mary’s car collapses like an accordion. The sound of metal crushing metal is heard for blocks. Chaos reigns. Mary is knocked out. When she wakes up, blood gushes down her face. Her scalp is torn off. She sits trapped in her car in agony. The terror worsens when she hears Brendan crying, then suddenly he stops. He is unconscious. Mary thinks to herself is he dead or is he alive? She is no position to know. She is helpless to come to her son’s aid. Fulvio doesn’t move and/or speak (PAUSE). Yet the defendant who causes all this blames her actions on somebody else. She says that some unidentified driver came out in front of her causing her to enter into Mary’s lane of travel. She refuses to accept responsibility for her actions.

We’ll learn that Brendan has a seizure at the scene of the collision. He is air lifted to Sick Children’s Hospital where we will hear he is induced into a coma. Fulvio is taken by ambulance to Sunnybrook Hospital and Mary is taken by ambulance to York County Hospital in Newmarket. The whole family which at 6:25 p.m. were seated together are now thrown apart. Mary is wondering if Fulvio and Brendan will live. She wonders whether she’ll live. If they live, what problems will they have? She can’t even be with her son at such a critical time.

At 6:25 p.m. on July 15, 1996, Mary’s, Fulvio’s and Brendan’s life changes forever.

Ladies and gentlemen, my name is Jim Vigmond. This is my co-counsel, Joanne MacMillan. We have the pleasure of having been asked by the Cubello family to represent them and to ask for justice for them. This case is about the Cubello NIGHTMARE. What does the future hold – a future that was once full of so much promise?

We’ll hear that Fulvio and Mary met at The Skyline Racquet Club where Mary was an instructor. Following her graduation from university, Mary followed her athletic pursuits. Training and athletics were a passion for Mary. You’ll hear that she wasn’t a person who just “worked out” as so many of us do once or twice a week. She trained. Even with a 4 year old son and a busy career, Mary always made time for athletics. She was a very accomplished cross-country skier. She skied most weekends in the winter. In 1994, Mary won the Canadian Masters 10 kilometer ski event. She played competitive tennis. She did hiking, aerobics, jogging and cycling.

She was as active as any 40 year old could be.

We’ll also learn that Fulvio graduated from a horticultural program at Ryerson College and went to work right away as a landscaper. It is no surprise why Mary and Fulvio got along so well. Fulvio shared that same passion for sports and training as Mary had. Fulvio’s chief pursuit was cycling. He would cycle most weekends and train on his bike 1 to 2 hours most days after working long and draining 10 hour days. He ran, hiked, skied and golfed as well. In fact, in his cycling, he was sponsored by a company with whom he had an arrangement to split any nominal fees that he might win in his races.
Mary had a career in advertising at MacIntyre Media. She started in 1986 and worked there ever since. We’ll hear from the owner of the company who I expect will tell us of the high regard that he had for Mary and what an integral contribution she made to the company. We’ll hear how it was Mary’s job to market the wares of the company, to ensure that the company sales would continue and the company would continue to be productive.

Fulvio will tell us that his business was seasonal. He worked from April to November, 50 hours a week in the summer months. His company did routine yard and garden maintenance. However, as well he had larger jobs such as constructing patios, walkways, decks and things of that nature. In the winter time, Fulvio would keep himself busy in different ways, predominantly working at sports shops.
On top of this busy work schedule and athletics, Mary and Fulvio were the proud parents of Brendan, a normal, happy, precocious 4 year old. During the days he was cared for by Nancy Smith. When Mary or Fulvio were away in competing events, the other would typically join him and take Brendan along. They would read his favorite story, Winnie the Pooh, every night. He never seemed to sicken of it. Brendan was happy, secure and comfortable with Mom and Dad.

On July 15, 1996 Brendan is now alone in Sick Kid’s Hospital. He suffers a concussion from the tremendous force of the impact. For 4 days he is kept alive by a ventilator, induced into a coma to prevent him from falling into an endless unconsciousness. He suffers a brain injury. Mom and Dad are not there to comfort him, soothe him or encourage him to get better. He finds himself alone.
Mary is taken to York County Hospital in Newmarket. In Emergency her injuries are identified. The doctors and staff undertake life saving measures. He scalp is shaven and sutured. We’ll learn that her skin was torn off her scalp for approximately 17 cm from the front of her forehead to the top. Both of her lungs collapsed, one of them filling with blood. Her left ankle is badly broken requiring surgery with pins and plates. The plates are used to realign the bones that are out of place. Her body is racked in pain. She is out of her mind with concern for Brendan and Fulvio.

Fulvio is taken to Sunnybrook Hospital where it’s determined that his neck is broken. He suffered fractures to 2 vertebrae in the neck here and one rib which attaches to where he broke the vertebrae. Fulvio is told that miraculously he suffers no paralysis or nerve damage. His neck is immobilized with a hard collar which he wears that night and for months afterwards. He suffers a 17 inch gash in the buttock area. His good news, if you call it that, is of knowing that he is not paralyzed is tempered by his knowledge that Mary lies in a different bed, in a different hospital, in a different city, and that his son, although in Toronto, was in a different bed, in a different hospital.

Mary and Fulvio suffer torment. What will happen to them and each other and what of Brendan?
We’ll learn that Brendan suffers a traumatic brain injury. He has difficulty doing most things he did before the collision. He has to re-learn his vocabulary. Guess whose job it is to help him in his recovery? He suffers tremors, he shakes. This is because of his head injury. His condition has to be monitored into adulthood to see how badly he is affected. Imagine not knowing how badly or well your only child will do over the next 10-15 years. Will he be left with difficulties forever that he never would have had had he not been in this collision? Mary and Fulvio are playing a kind of craps with the role of the dice. Will 7 or 11 turn up for Brendan?

We’ll hear that Mary is treated in Newmarket hospital where she remains for 2 weeks. However, her condition with respect to her lungs is not improving so she has to be transferred to Sunnybrook Hospital. There, she is seen by Dr. Taylor, who we’ll learn is a thoracic surgeon who performs a thoracotomy. Dr. Taylor will tell us that he cut a whole through Mary’s skin and placed a tube into her chest wall to inflate her lung. He had to repair the torn lining of the lung before he could re-inflate it. Unfortunately, we’ll learn that some people who have this surgery suffer permanent pain. Unfortunately, Mary is one of those people. She develops post-thoractomy pain syndrome – a constant pain running from the mid back around the front of her body to her breast which causes her pain and numbness.

All tolled, Mary spends 30 days in hospital. Her ankle, although put back together, is not good. We’ll hear that she is going to require surgery again so that the bones are fused together. We’ll learn that this will result in having a permanently fixed foot with no possibility of movement. We will ask you to think of how this would affect Mary’s athletic activities. We’ll learn that she will not be able to ski or to run or to play squash anymore. To some people we might say so what. I’ve never skied or run or enjoyed playing squash in my life. For Mary, we’ll hear that this is a devastating blow.

In fact, we’ll hear from Dr. Dydyk, Mary’s psychologist, that Mary not only suffers from physical pain but she suffers a psychological pain. We’ll learn that Mary becomes severely depressed. In fact, she sees Dr. Dydyk twice a week for a year and once or twice a week for the next couple of years. Dr. Dydyk will testify I expect that Mary will have to see her for years to come.

We will hear that Mary was off work for 6 months during which time she devoted her energy to recovery and to Brendan’s and Fulvio’s future recovery. We’ll learn that she goes to Tottenham Physiotherapy religiously, initially 5 days a week. She gets up on crutches, drives a half hour to physiotherapy, spends a couple of hours there, drives the half hour back home. She does this every day for 3 months. We’ll learn that this is an exhausting process to get better, but Mary is determined to do what she can. We’ll hear that Mary takes pain medication and has massage therapy and goes to the chiropractor, does whatever she can to get better.

When Mary comes to testify, you may be taken aback by her cool demeanour and how unwilling she is to be seen as weak or depressed. Dr. Dydyk will tell us that beneath this calm cool exterior lies a molten inner core which is boiling over.

By January, we’ll learn that Mary is well enough to go back to work part-time and that’s as far as she can make it going back part-time. Eventually, Mary gets up to 26 hours a week or about 70% of where she used to be. She receives less pay. In fact, we’ll learn that Mary is paid some income replacement benefits from Manufacturers Life Insurance Company and National Frontier Insurance Company but she receives far less money than she would if she were working.

So too is Fulvio’s job affected. He has to take the entire 1996 season off and returns to work in 1997. Luckily, Fulvio’s customers are loyal and most of them hire him back in 1997 but not all of them. In fact, he finds it more difficult to do his work because of neck and back pain. Now although Fulvio didn’t break his back, we’ll learn that the force of his collision did tear muscles and ligaments in his back causing him pain. He limits his work to lighter jobs, he works less hours, he has less clients, he makes less money. In fact we’ll learn now that Fulvio is considering changing careers from the only one that he’s known since he completed college in 1986. What else is there for him to do?

How life has changed for Mary and Fulvio.

You’ll be asked to do 3 things in this law suit.

1. Compensation for General Damages
His Honour will tell you that it is your responsibility and yours alone to award general damages. That is something that has 2 parts to it – pain and suffering and loss of enjoyment of life for both Mary and Fulvio. His Honour will tell you that Brendan’s case can only be decided in future once he gets older and the effects of his injuries are better known.

Now the responsibility that you have in this case is an awesome one. Only you are permitted to rule on how Mary and Fulvio have suffered. Only you can acknowledge to Mary and Fulvio that you understand their endless worry of the future not only of themselves but each other. Only you can compensate Mary for her endless torment and pain.

As with Mary, you alone have the responsibility to compensate Fulvio for his pain and for his suffering and loss of enjoyment in his life. You’ll be asked to recall the darkness of his early days, of thinking of Mary and Brendan who are left alone. You’ll be asked to consider what the future holds for him. You’ll be asked to consider what it must be like constantly worrying his health, his future and that of his family.

2. Compensation for Loss of Care, Guidance and Companionship
You will also hear that aside from awarding compensation for pain and suffering and loss of enjoyment of life, it is your responsibility and yours alone; to determine what companionship Mary might have gotten from Fulvio. You have to consider what Fulvio’s loss of care, guidance and companionship would have been had Mary not been injured. Now Mary’s injuries were terrible. It has left her disfigured, in pain and with a certain prospect of further surgery. This impacts not just on Mary but also Fulvio – how Mary has been depressed and irritable and how they’ve had some marital difficulties. Mary was once a vibrant person, very active, a good wife and companion. That has all changed.

3. Liability
In addition to awarding damages it is up to you to determine if the defendant, Guidolin, was wrong when she went into Mary’s lane of travel and hit them head on. You will recall that Guidolin says it’s not her fault, that it was some unidentified vehicle that was at the intersection. In that event, if Guidolin is not at fault, then Mary’s insurance company, National Frontier Insurance Company, is responsible to pay the damages you award. Ask yourself why Guidolin had to hit Mary and destroy this family.

4. Sense of Empowerment
The responsibility to award these damages is really an awesome one. You think to yourself how can I possibly award damages? Who am I to know how much Mary and Fulvio should be compensated?
First, I will say to you at the end of the day that no amount of money would ever compensate Mary and Fulvio. Unfortunately, money is all that can be awarded. No amount of medical care, physiotherapy treatments or chiropractic treatments will cure Mary. In awarding damages for compensation, you will be acknowledging their pain, acknowledging their suffering and their torment. You will have the capacity to do justice.

5. Inoculation Against Activity Level
Now I don’t know what the defence may say but I expect you will hear because Fulvio and Mary have diligently applied themselves and because they are able to return to work, that their losses are not so great or profound.

And it if you hear that argument, I ask you consider how obscene it is for someone to take advantage of their diligence and of their dedication. Mary and Fulvio have brought themselves as along as far as they have because they’re such decent, hard working, compassionate people. Both Mary and Fulvio suffer constantly and are reminded of their restrictions daily in almost everything they do. Is the defence really trying to distract you from the real issue of feeling their losses and awarding them compensation.

I also ask you to consider that some injuries affect different people in different ways. A broken finger to me is not serious. I couldn’t care a hoot. But an injured finger to a concert pianist is catastrophic. In asking you to award compensation for these injuries, I do not ask you to look how these injuries might have affected anybody else. I do not ask you to consider how active Mary and Fulvio are today compared to anybody else. All that I ask is that you consider how these injuries have affected Mary and Fulvio.

6. Care Costs
Now you will also hear that National Frontier Insurance Company is a party to this action because Mary and Fulvio have claimed entitlement to various benefits under their own automobile insurance policy. Some evidence will be led with respect to their entitlement to massage therapy, chiropractic treatments, analgesic medications, housekeeping etc. I tell you this not because you will be asked to make a decision with respect to the obligation of National Frontier to pay Mary and Fulvio for these expenses but rather because there will be some evidence you will hear about these issues that the judge will have to decide and you may wish to understand why you are hearing about this at all.

CLOSING
Ladies and gentlemen at the end of the day, when all of the evidence is in I will have one more opportunity to address you. The lawyers for the defence will be able to speak to you first and I will then speak last. At that time I will ask you to do one thing and one thing only and that is to do justice, to acknowledge Mary and Fulvio will never be the same, to acknowledge they will have life long problems and life long worries. We can all take comfort of what is written in the 103rd Psalm of the New Testament:
“He gives justice to all who are treated unfairly”.

Please give justice to Mary and Fulvio.