Often in trials involving catastrophic brain injury that renders the plaintiff so incompetent as to be unable to assist her lawyers at trial, the defense moves first to bifurcate the trial between liability and damages phases, and then to exclude the plaintiff from the courtroom during the liability phase.

The idea is to prevent the jury from mixing sympathy for the plaintiff with determination of fault.

Over the years I have had mixed results in dealing with that issue, with both sides arguing on the basis of court decisions in other jurisdictions, as there has been no definitive Georgia law on point.

Now the Supreme Court of Georgia, in an opinion written by Justice David Nahmias, has resolved the issue. The case involved a child with spastic quadriplegia due to cerebral palsy, allegedly due to obstetrical malpractice at her birth. Kesterson v. Jarrett, — S.E.2d —-, 2012 WL 2203450, Ga., June 18, 2012 (NO. S11G0590).

It is a long and scholarly opinion to which I cannot easily do justice in a brief blog post, but here are a couple of brief excerpts:

Under the longstanding law of Georgia, the parts to a lawsuit have a fundamental right to be present in court during the trial of their case. The issue presented in this appeal is whether a party may be denied that right and excluded from the courtroom because her physical and mental condition may evoke undue sympathy from the jury and thereby improperly prejudice the other party. This appears to be a question of first impression for Georgia’s appellate courts, likely because exclusion of a party from trial for this reason is such an exceptional event in this State. . .

We conclude . . . that a party may not be excluded from her own trial simply because her physical and mental condition may evoke sympathy, even under these circumstances. Instead, trial courts can and should address the risk of undue sympathy using jury instructions and other common and time-tested means of ensuring that both parties receive a fair trial, without infringing on the parties’ right to be present. Accordingly, we reverse. …

Now that the right is established to have the mentally incompetent plaintiff in the courtroom at all phases of trial in Georgia state courts, the next question is what impact that will have on trial tactics of both plaintiff and defense lawyers.

In medical malpractice trials, where juror sympathy often aligns with the defendant doctors who win about 80% of the time, it might not make much difference. In the Kesterson case, the child was present at the beginning of jury selection and once during medical testimony in the liability phase. I can only speculate on whether the exclusion of the child for most of the liability phase of the bifurcated trial really made a difference in the outcome.

While the child’s appearances were brief, some plaintiffs’ trial consultants counsel limiting exposure of such a plaintiff to brief times in order to maintain the shock value and prevent jurors from becoming hardened to the plaintiff’s condition.

The “rules of the road” strategy widely promoted by trial consultants today requires focus on the safety rules and their violation by the defendant prior to talking much about damages. This is the reverse of the practice a generation ago in which plaintiff lawyers would start out with talk about how badly the plaintiff was injured. Only after establishing the importance of all the safety rules the defendant violated, according to this theory, does the plaintiff’s lawyer have psychological permission from the jury to go into discussion of damages.

The defense lawyer who moves for bifurcation of trial under these circumstances may lead even the less sophisticated plaintiff’s lawyer into inadvertently adopting the “rules of the road” strategy rather than blatantly pandering to sympathy from the beginning.

Perhaps some defense lawyers, knowing that they cannot exclude the catastrophically brain damaged plaintiff from the courtroom during the liability phase, will reconsider the strategy of moving to bifurcate liability and damage phases. In so doing, they might lure plaintiff lawyers into  alienating jurors though overt appeals to sympathy by keeping the plaintiff in the courtroom for the entire trial. Jurors are pretty smart cookies who can easily resent such pandering.

And perhaps some plaintiffs’ lawyers will voluntarily choose to bring in the catastrophically injured plaintiff only briefly in the early stages of trial, preserving the shock value for perhaps the explanation of a life care plan in support of a large damages number near the end of the trial.

Even though we can keep in the courtroom for the entire trial a spastic quadriplegic with no mental capacity to assist the lawyer, that does not mean we should.