By Melissa M. Gomez
Special to the Legal
A few years back, I was working for a plaintiff on a case in which a woman had severe leg injuries after a pedestrian-versus-bus accident. The accident was horrific, the injury was severe, and she had lost a good deal of the independence and athleticism she once enjoyed. She was a lovely, likable person. Jurors were going to love her.
Part of the case was a claim for loss of consortium. When interviewing her husband, I wanted to take a pulse on that claim, so I asked him how things had changed for him. "Well," he said, "she used to be very active and out and about. Now she is here all the time. I don't get my alone time as much." My first order of business after that meeting: Make sure the loss of consortium claim was taken out of the case before this fellow's deposition was taken.
A claim of a spouse after a severe injury to his or her counterpart can be very powerful in a trial … but not every trial. There are times when it simply comes across as greedy for a spouse to try and get money over an injury that is not his. After all, jurors may think, you did say for better or worse, did you not?
Therefore, I disagree with the strategy to put a consortium claim in just about every case, and I have advised more than one client to take it out. The inclusion of loss of consortium is a decision to be made carefully, being very aware of those instances where it can harm the credibility of the case.
Moreover, the manner in which loss of consortium is handled at trial is also important to the credibility of the case and likability of the plaintiffs. It often rubs jurors the wrong way to hear, for example, a wife up on the stand talking about the extent to which she has been inconvenienced by her husband's illness.
I recall one recent example in which a wife complained about how she needed to come back early from a tropical vacation because of her husband's medical problems. She said she has not been able to travel the way she wants since the injury. Working for the defense, this was music to my ears.
Loss of consortium is more powerful when it illustrates the strength of the bond between husband and wife. This is best achieved by having each spouse talk about the other. When a wife speaks of her concern for her ailing husband while her husband speaks of his upset about being a burden to his wife, that can be emotionally powerful. On the other hand, a husband complaining of the loss of "me time" or a wife expressing upset about missing her tropical vacations -- not so powerful.
Loss of consortium is an important claim in those cases that warrant it. Not all cases do. In any event, it must be handled carefully. The rule of thumb is this: The more a spouse of an injured plaintiff talks about herself, the less sorry people will likely feel for her.
Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. If you have questions regarding jury psychology that you would like to see addressed in this blog, contact Gomez at melissa@mmgjury.com or call 215-292-7956.
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