Central New York Injury Lawyer Blog
As a New York personal injury lawyer, I know that words are weapons. When I prepare to try a personal injury lawsuit, I arm myself with the word-weapons I will parade before the jury. They are arrows in my quiver. I carefully pick them, and fine tune, and then deploy them. I am the general, the commander, and they are my infantry, my soldiers. Below I will give you some examples of how I choose and deploy my soldiers for battle.
But before I do, let me tell you that words are also my enemies. Certain words will forever be banned from my trial lexicon. The prime example is the word “accident”. Whether my client was injured in a car collision, or in a scaffold collapse, or slipped and fell in a supermarket, you can sit through the entire trial and never hear the word “accident” spill out of my lips. I will never say “car accident”. I will say “collision” or “crash”.
Why? The whole premise of a personal injury trial is that the plaintiff’s horrific injuries were no “accident” at all. They were caused by the NEGLIGENCE or CARELESSNESS of the defendant. The word “accident” implies that no one is to blame. An accident simply happens. In popular jargon, this is expressed as , “s_ _ _ happens”. The whole point of my personal injury trial is to prove that s_ _ _ did not just “happen”. Rather, the defendant MADE it happen by CHOOSING to cut corners, not pay attention, allow himself to be distracted, or whatever.
By the way, that word – “choosing” – is another one of the arrows I almost always carry in my quiver. When I address a jury, I never say, “defendant did not look where he was going”. Nope. Instead I say, “defendant CHOSE not to look where he was going. Do you see the difference? The word “choose” emphasizes that the defendant could have avoided injuring my client if he had just chosen to be careful. It emphasizes culpability, which is the whole point of my trial.
Let me digress. If you ever go skiing at Bristol Mountain, near Canandaigua, New York (as I often do), on the way up the main chairlift you will see a sign that says, “safe skiing is no accident”. Do you see the pun? Safe skiing is no “accident” because you have to choose to ski safely. Skiing safely does not just “happen” by “accident”. And safe skiing is no accident because if you do choose to ski safely you will not cause an “accident”.
But it’s more than a pun. It’s the truth. If you CHOOSE to follow safe skiing practices, you will not cause an “accident”, which is really not an “accident” at all. It is the result of choosing to not practice safe skiing.
Same can be said for driving, or maintaining a store, or designing a product. The actor must CHOOSE to act safely, thus avoiding an “accident”, which is not really an “accident” at all.
But guess what. I’m not the only lawyer in the courtroom. Good defense attorneys also come to court with an army of words. For example, they love the word “accident”. It makes their clients sound so innocent, almost as if they are victims, too. Another word they love to use is “responsibility”. They often claim that my client’s injuries were their own fault. It’s called blaming the victim. Defense counsel claims that the injured plaintiff should have been able to avoid the “accident” by simply taking “personal responsibility” for their own actions. For example, if the victim tripped and fell in a pothole in a sidewalk, well, he should have looked where he was going. He should take “personal responsibility” for his “accident” rather than blame others for his injuries.
When this happens – as it usually does – a good personal injury lawyer counters the attack with judo law. What is “judo law”? One of the principles of judo is harnessing the force the enemy throws against you to redouble it against him. So if he comes at you with a body thrust, you don’t oppose it. Rather, you pull him in that same direction, doubling his velocity. Hopefully there is a wall behind you he will crash into, with twice the force.
So if the defendant wants to talk about “personal responsibility”, fine with me. We’ll just take that word and run with it like this: What about the “responsibility” of the store owner who failed to keep his store floor in a safe condition? Or the “responsibility” of the defendant motorist who failed to yield the right of way? Or the “responsibility” of the dog owner who failed to control his pit bull? Shouldn’t they take “responsibility” for THEIR actions?
Now here’s an example of how I carefully choose my trial vocabulary, depending on the facts of the case. Assume I represent an elderly client who was out for a stroll with his grandson when a neighbor’s pit bull charges and bites his arm as he tries to protect his grandson. My vocabulary list might look like this:
- Describe my client as “grandfather” (avoid “elderly” or “senior”. “Grandfather” garners more sympathy)
- Refer to the dog as “the pit bull”, never just “the dog” (“pit bull” connotes viciousness)
- Refer to the pit bull “charging” towards my client (not just “running”. Charging connotes more aggressiveness)
- Refer to the dog’s action of “clamping down and tearing flesh” or “mauling” (not just “biting”).
- Refer to client’s action of putting up his arm as a guard against the dog as “protecting” his grandson, not just “blocking” . (“protecting” is more heroic, more admirable).
This is just an example. The point is that, for a personal injury lawyer, words matter. That’s because they matter to the jury. We are artists. We are painting a picture for the jury. Words are like the colors on the painter’s palette. A good personal injury lawyer chooses them wisely. Make sure YOU hire a personal injury lawyer who understands the importance of words. Me, for example! 🙂
Keep safe!
Mike Bersani
Email me at: bersani@mbk-law.com I’d love to hear from you!
mbk-law.com
Syracuse NY Personal Injury Lawyers
Michaels Bersani Kalabanka
315-253-3293