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Utilizing Low-Tech Demonstrative Evidence in Closed Head Injury and Psychological Injury Cases

John D. Winer, Esq.

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San Francisco, California 94111


By drawing three interlocking circles and labeling one circle “cognitive,” another circle “physical” and another circle “emotional” during the testimony of plaintiff’s neuropsychologist, plaintiff will be well on his/her way proving damages and overcoming the typical defenses in a mild traumatic brain injury case.

Once the interlocking circles are drawn, the neuropsychologist (or plaintiff’s attorney in closing argument) can explain to the jury how at all times we are always functioning in the physical, emotional and cognitive realm. While the jurors are listening to your expert, they are using their cognitive, i.e. thinking, abilities. However, at the same time, if they are stiff from sitting all morning, they may feel some physical achiness. If they did not sleep enough, they may feel some physical tiredness. Their emotions are also effecting how they are listening to the testimony. If they are anxious because of some personal problem, they may be distracted. If there was some loss in the family, they may feel sad.

With this explanation, the jurors will quickly understand and accept the concept that we all do function in the physical, cognitive realms at the same time.

Next, the point needs to be made that the physical, emotional and cognitive aspects of our being are constantly interacting with each other. They do not exist in isolation. If we are physically tired, we will have trouble with the cognitive task of paying attention. If we have difficulty paying attention, it will affect our emotional well-being and we may begin to feel anxious. If we feel anxious, we may develop the physical symptoms of rapid heart beat or stomach pain. If we develop stomach pain, it could cause further distraction and make it more difficult to think, and on, and on, and on.

When someone receives a brain injury, all three aspects of their functioning are effected and can cause a dysfunctional loop in which the physical, cognitive and emotional elements of their injury combine to cause a disability.

Why is this testimony so important? Because it addresses the two typical defenses utilized in mild traumatic brain injury cases.

Typically, the defense will hire a neurologist who will testify that the plaintiff had a completely normal neurological examination and that the MRI, CAT scan, EEG, etc., were negative; therefore, plaintiff did not suffer a brain injury. Many times the defense will attempt to rely upon the testimony of a neurologist alone. The neurologist will ignore the testimony of plaintiff’s neuropsychologist or claim that it is not objective and it is not scientific.

By utilizing the Venn Diagram, you can annihilate the defense neurologist. You can point out that the neurologist focuses on only one of the circles, the physical component of the patient. A neurologist’s examination only tests for gross focal defects. It does not test for diffuse subtle brain damage that can only be detected on neuropsychological testing. You can then argue that the defendant hired the wrong expert for this case because plaintiff is not alleging that he/she suffers from a gross focal physical defect.

If the defense utilizes a psychiatrist as opposed to a neuropsychologist, you can still make the argument that the defendant is only focusing on one circle, this time the emotional circle. By focusing on the emotional issues, the defense is ignoring the cognitive and, perhaps, physical aspects of the plaintiff’s injury.

Another technique utilized by the defense in traumatic brain injury cases is to hire a neuropsychologist who, along with a psychiatrist, will come to the conclusion that the examination and psychological testing indicate that the plaintiff’s condition is psychological.

Once again, you can utilize the interlocking circles to help overcome this testimony.

Your ultimate argument will be that as long as plaintiff’s difficulties are related to the subject accident, on a practical level, it does not matter whether the symptoms emanate from a psychological injury or a brain injury. Because of the way that emotional difficulties leak into cognitive and physical difficulties and move back into emotional difficulties, it is simply an academic issue as to whether plaintiff is suffering an injury from his/her brain or his/her mind. They are not really separable. Who cares if the plaintiff is having difficulty concentrating because his/her brain is not allowing him/her to think straight or because his/her emotions are not allowing him/her to think straight?

Obviously, given the choice, you would want to have objective evidence of a brain injury because it would be more impressive to a jury and because plaintiff will not be able to recover from a brain injury, where he/she may be able to recover from a psychological injury; however, by using the Van Diagram, you can still establish damages and overcome the defense in difficult cases.


The most difficult issue in almost any psychological injury case will be causation. In cases involving all but the most objectively severe emotional trauma, jurors will have a hard time understanding why the accident caused a severe psychological injury. Even in cases of severe trauma, jurors may have an easier time understanding how the accident caused a psychological injury; however, they will still have difficulty accepting the concept that the accident caused a severe lifetime injury. Basic juror attitude will be that “If I was subjected to the same trauma, I would not have suffered a psychological injury, or at least a severe lifetime psychological injury.”

Thus, to meet this juror resistance, we attempt to separate the plaintiff from the jurors. We generally do this by attempting to establish that the plaintiff was more vulnerable to the subject trauma than the jurors would have been. Ideally, we will be able to establish that before the accident, the plaintiff was highly functional, or at least somewhat functional, but plaintiff suffered from deep seated vulnerability that was held in check until the subject trauma broke down the plaintiff’s defense mechanisms.

Then, in closing argument, we blow up a copy of BAJI 14.65 and explain this pre-existing condition jury instruction to the jurors while illustrating the principles in the instruction by a drawing.

The drawing, which can be drawn in closing argument or during the testimony of plaintiff’s expert psychiatrist or psychologist, begins with a drawing of a vase holding flowers and water on top of a table next to a window.

We then describe that a wind blows through the window knocking over the vase. The vase does not shatter, but instead gets a crack in it. We then draw a crack in the vase that is standing on the table.

We point out to the jury that this was like the plaintiff before the subject accident. The vase is not the perfect, beautiful vase that it was before the accident, but it was still functional and it still held water and flowers. This was just like the plaintiff. Because of childhood trauma, plaintiff had some deep seated vulnerabilities or cracks in his/her functioning; however, he/she was still functional before the subject trauma.

We then describe another breeze coming through the window and this breeze again knocks down the vase. But this time, because the vase already had a crack in it, it shatters. The vase becomes dysfunctional, shattered crockery which cannot be put back together again; which cannot hold water or flowers. This is what the plaintiff is like after the accident.

We then return to BAJI 14.65 and describe how the law protects the weak like the plaintiff as well as it protects the strong like the defendant. Just because plaintiff suffered from a pre-existing condition does not mean that he/she is not entitled to recover damages for an aggravation of that condition. Further, even if an ordinary healthy person would not have been injured in the trauma, plaintiff is still entitled to recover because of his/her pre-existing condition and/or vulnerability. In other words, the defendant cannot come into court and say “Plaintiff, you had a crack in your pre-existing psyche the way the vase had a crack running down its side, and if you did not have that crack in your functioning, you would not have been injured.” This would be the same as if a farmer was driving with a truck full of eggs, and the truck was rear-ended by another truck and all of the eggs were smashed. The offending truck driver cannot come into court and say that he, in effect, did not owe the farmer any money for the eggs because if there were golf balls in the crates instead of eggs, there would not have been any damage.


The two very simple demonstrative evidence techniques discussed above have almost always proven successful during trials. They both make complicated concepts simple for a jury and help to overcome the typical defenses utilized in any mild traumatic brain injury or psychological injury case.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit for more information or for a free online consultation.

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