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Dealing with a Seriously Impaired Plaintiff at Trial

BY Lori G. Cohen
November 25, 2008

Last month, we discussed the fact that state laws vary regarding whether and when an impaired plaintiff can be present in the courtroom during the trial of his or her case. We conclude with a discussion on methods for diminishing the emotional impact on the jury of the courtroom presence of such a plaintiff.

The Damages Phase

Despite the varying positions and analyses regarding the exclusion of a plaintiff during the liability phase of trial, it would be difficult for courts to justify the exclusion of a plaintiff during the damages phase of trial. In Morley v. Superior Court of Arizona, 131 Ariz. 85, (1981), the Supreme Court of Arizona explained that “the plaintiff should be allowed to prove damages by the most direct evidence available ' the plaintiff's own physical condition. It is true that the jury may still have a bias against defendant because of the plaintiff's condition, but the bias in the damages phase is grounded on relevant evidence. The right to trial by jury is the right
to a trial by one's peers, and this includes the right to have a person's conduct judged by community standards. The defendant cannot avoid responsibility for his or her conduct by preventing the jury from seeing the results of that conduct and applying community standards to those results. A jury should not decide liability based on the severity of the plaintiff's injury, but certainly the jury should award damages based on the severity of the plaintiff's injuries.” Id. at 88.

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