Benefits of a grief counselor's testimony
Rob Ammons and David A. Kirby

Posted with permission of Trial (October 2011)
Copyright American Association for Justice,
formerly Association of Trial Lawyers of America (ATLA^®)

Don't risk losing sympathy for your client in a wrongful death or catastrophic injury case by subjecting jurors to lengthy stories of heartbreak and sorrow. A grief counselor can put the loss in context to help jurors understand your client's suffering.

Nearly everyone has experienced the loss of a family member or friend. Do you remember how that made you feel? Are you able to put into words the emotions that overcame you when you learned of that person's passing?

Certain descriptive words surely come to mind: sad, depressed, heartbroken, lonely. But such words alone can never express the grief and bereavement associated with the unexpected and preventable loss of a loved one or the feelings associated with an injury that causes lifelong disability.

Enter the grief counselor. At trial, a grief counselor can explain to the jury the complexities of the grief and emotional trauma suffered by the plaintiff. A grief counselor can also describe the likely path that the grief and bereavement will take in the future. This testimony can effectively supplement the testimony of the bereaved and can be useful in presenting the picture of emotional damages to the jury.

We first realized the potential of grief counselors' testimony in wrongful death and catastrophic injury cases during a trial in which we represented a widow who sued an automaker over the death of her husband.

We were well prepared when it came time for the client to testify about her emotional distress following her loss. We questioned her on the stand for more than an hour, touching on every element required by law to establish emotional damages. The widow was extremely emotional and cried as she detailed the severity of her grief.

The direct examination undoubtedly made a strong case for emotional damages, but it was made at the expense of alienating the jurors, who were visibly unhappy, sitting with their arms crossed and frowning while we questioned the young widow. Either they disliked us for putting her through the emotional examination, or they thought it was merely a play for sympathy.

A grief counselor's testimony could have alleviated the need for that client to testify at length about her emotional distress, thus allowing her direct examination to focus on the grieving process and the specific steps she took to help deal with the loss of her loved one. And this would have allowed us to portray her more accurately as a fighter and survivor.

Nearly everyone who loses someone close goes through the grieving process; it is both normal and natural. Those who suffer catastrophic injury also often grieve with respect to what the injury has taken from them. When discussing the grieving process, it is important to understand that grief and bereavement are not the same.

Bereavement is defined as "the fact of loss through death," where the "psychologic, physiologic, or behavioral response to bereavement" encompasses the reaction a person has to death.1 Essentially, bereavement is the state of having experienced a loss. Grief is the "observable behaviors that reflect a person's feelings"2 and "certain associated behaviors such as crying."3 The grieving process is the changing state of a person's feelings.

The grieving process has been described as taking place in five stages: denial, anger, bargaining, depression, and acceptance.4 However, these stages are not linear stops on the path to some grief resolution.5 The grief process may more easily be described in terms of tasks. These tasks are not linear in nature, and different people may skip certain tasks or go through them faster or slower than others.6

The first task is shock and disbelief, which is a relatively short stage that occurs when the news of a death or serious injury is first realized.7 The second task encompasses "intense psychic pain that can come from both emotional swings and physical complaints."8 This period of grieving can be accompanied by anger, separation anxiety-in the case of death-and helplessness.

The third task is the adaptation to a new way of life.9 This could include learning how to live without a loved one or, if a person has suffered a paralyzing injury, becoming accustomed to the fact he or she will never walk again. The fourth task is reinvestment in life, where a survivor internalizes the death of a loved one and makes that person a part of the survivor's inner world.10 This allows the survivor to both keep the loved one close and also let the loved one go. In the aftermath of a catastrophic injury, this task allows a family member or friend to internalize the way a loved one used to be, while also coming to terms with the fact that the loved one will never be the same.

When certain factors accompany a death or catastrophic injury, the grieving process may become complicated and typically lasts longer than a year.11 These factors leading to complication include situations where a death was sudden, unexpected, preventable, out of order, or involved suffering. Grief can be magnified, too, if the grieving person was especially close to the deceased or injured person. We've found that most of these complicating factors are present in nearly every wrongful death or catastrophic injury case.

The grief counselor's role

Plaintiff attorneys instinctively focus on establishing liability first. When a client comes in the door, our questions typically revolve around liability facts. Only later, once we feel confident that liability can be established, do we turn to the issue of damages. This is a dangerous strategy, however, because while establishing liability is certainly necessary to recovery, damages are paramount to achieving just results for our clients.

In his groundbreaking book Damages, trial consultant David Ball describes the problem this way:

Some literary scholars think that a two-minute piece of Hamlet-in what is called the "closet scene"-means that the play is about an Oedipus complex, though the play's other 138 minutes have nothing to do with mother-coupling. Every audience-miles ahead of literary scholars-knows Hamlet is about revenge. How? Because Hamlet spends most of its time being about revenge. A play is about mother-coupling only if it spends a large portion of its time being about mother-coupling, such as Oedipus Tyrannos does.12

Ball suggests that as much as half of a plaintiff's case should be spent on damages.13 This includes not only the case-in-chief, but also voir dire, cross-examination, and closing argument. Because the trial is about recovering damages for your client, the trial must be about damages. To accomplish this goal, you must be intimately familiar with the "full range and depth of your client's harms and losses."14 This includes your client's grief.

In wrongful death or catastrophic injury cases where emotional damages are claimed, a grief counselor can help focus on the damages aspect of the lawsuit. A grief counselor may assist in understanding the emotional trauma (harms and losses) of the client. Furthermore, the expert can help focus the jury on emotional damages during trial. Please remember to consult the law of your jurisdiction to determine whether emotional damages are recoverable.

Grief counselors help catastrophically injured people identify feelings and work through their pain and suffering. They help those who are grieving find meaning in life after a loss and buffer them from the all-too-common suggestion that it is "time to move on."15 Typically, counseling is provided by specially trained nurses, professional counselors, pastoral counselors, clinical social workers, clinical psychologists, or psychiatrists.16

One of the more difficult endeavors we have at the beginning stages of a wrongful death or catastrophic injury case is to elicit information from our clients without doing further damage to their psyches. In addition to assessing the emotional state of your client, whether he or she is injured or bereaved, a grief counselor can help you understand how to best communicate with your client. The counselor also can assist in taking your client's full history and in finding areas of damages testimony that you may otherwise overlook.17

At trial in wrongful death cases, it is generally the practice to elicit testimony from survivors regarding their grief. In catastrophic injury cases, the injured person can testify as to his or her enduring mental anguish. And before-and-after witnesses can testify as to your client's changes in behavior. However, these witnesses are generally unable to provide context to grief and bereavement.

A grief counselor's testimony can help focus the jury's attention on the factors that are contributing to your client's ongoing grief response. They can explain the complexities of your client's grief and emotional trauma and project how that grief will affect the client's life. Their testimony also reduces the burden on your client to provide extensive testimony about his or her emotional state. Such an expert can also help solidify the record in terms of damages for purposes of a potential appeal.

Coupling lay witnesses' and grief counselors' testimony will more effectively draw the jury's attention to the damages issue. It will give the jurors who support your case the ammunition they need to persuade other jurors to fight to include adequate emotional damages in the verdict.

Admissibility of testimony
Because the injured plaintiff, the decedent's heirs, and before-and-after witnesses are not experts, the admissibility of their testimony is not subject to the rigors of Federal Rule of Evidence 702. Instead, this lay witness testimony need only be "rationally based on the perception of the witness" and "helpful to a clear understanding of the witness's testimony or the determination of a fact in issue."18

A grief counselor, being an expert, must satisfy the strictures of Federal Rule of Evidence 702 as well as Daubert v. Merrell Dow Pharmaceuticals, Inc., and its progeny. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."19 Expert testimony, therefore, must be relevant and reliable, the expert must be qualified to give an opinion, and the opinion must assist the trier of fact.20

Before retaining grief counselors, thoroughly research your jurisdiction's law regarding the admissibility of their testimony. Challenges generally do not focus on their expert qualifications. Grief counselors are usually professionals, such as psychologists or psychiatrists, who require an advanced education in human behavior and a professional license. They generally have significant experience dealing with emotional trauma in their professional practice, giving them significant insight into grief and bereavement.

Even so, as is the case with the selection of any expert, research is necessary to ensure that he or she is not unduly susceptible to a challenge for lack of qualifications. The most common challenge to the admissibility of a grief counselor's testimony is based on its ability to "assist the trier of fact to understand the evidence or to determine a fact in issue."21 However, many courts recognize that grief is complicated and that it is not an emotion easily understood by the common juror.

For example, in Horton v. Channing, the defendant appealed the admissibility of a grief counselor's testimony concerning the plaintiffs' grief following the death of their child.22 However, a Florida appellate court determined that because the expert testimony was specific to the plaintiffs' suffering, it was information that could "assist the jury in understanding the evidence and evaluating the issue of damages."23

Courts also have allowed grief counselors to testify generally about the tasks involved in the grieving process. In In re Air Crash at Lexington, Kentucky, August 27, 2006, a federal trial court was unmoved by the defendant's arguments in support of a motion to exclude the testimony of two clinical psychologists designated to give opinions "regarding the impact an unexpected, catastrophic loss of a parent generally has on a child" in a mass casualty, wrongful death lawsuit.24 The defendant's primary argument was that the experts had only examined one claimant, so their testimony should not be allowed to benefit any other claimant.25

The court held that the experts had "sufficient experience studying and treating the grief of children resulting from the catastrophic loss of a parent that their testimony on the general subject [was] reliable and admissible."26 The court also rejected the defendant's other claim that the emotional impact of such a catastrophic event on a child was within the common understanding of the jury; expert testimony on the subject could aid the jury in their damages determination.27

The use of grief counselors in wrongful death and catastrophic injury cases can help you communicate with and understand your client, assess emotional distress, and focus on areas of testimony that are beneficial to proving emotional damages. At trial, a grief counselor can help focus the jury on damages and objectively explain your client's emotional distress without alienating jurors.

Rob Ammons is founder of the Ammons Law Firm in Houston. David A. Kirby is an associate with the firm.

Notes:
1. Bereavement: Reactions, Consequences, and Care 9 (Marian Osterweis et al. eds., Natl. Acad. Press 1984) [hereinafter Bereavement].
2. Robert T. Hall & Mila Ruiz Tecala, Grief and Loss: Identifying and Proving Damages in Wrongful Death Cases 19 n. 1 (Tr. Guides 2010).
3. Bereavement, supra n. 1, at 10.
4. Elizabeth Kübler-Ross & David Kessler, On Grief and Grieving: Finding the Meaning of Grief through the Five Stages of Loss 7-24 (Simon & Schuster 2005).
5. Id. at 7.
6. See Hall & Tecala, supra n. 2, at 50.
7. Id. at 51-52.
8. Id. at 52-53.
9. Id. at 54.
10. Id. at 54-55.
11. Roxanne Dryden-Edwards & Melissa Conrad Stöppler, Grief: Loss of a Loved One, MedicineNet.com, www.medicinenet.com/loss_grief_and_bereavement/article.htm.
12. David Ball, David Ball on Damages: The Essential Update, A Plaintiff's Attorney's Guide for Personal Injury and Wrongful Death Cases 4 (2d ed., Natl. Inst. Tr. Advoc. 2005).
13. Id. at 5.
14. Id. at 2.
15. Hall & Tecala, supra n. 2, at 309.
16. Id. at 307.
17. See id. at 311.
18. Fed. R. Evid. 701.
19. Fed. R. Evid. 702.
20. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
21. See Fed. R. Evid. 702.
22. 698 So. 2d 865, 868 (Fla. App. 1997).
23. Id.
24. 2009 WL 1883996, at *2 (E.D. Ky. June 30, 2009).
25. Id. at *3.
26. Id. at *4.
27. Id. at *5.

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