Harry Plotkin’s May 2012 Jury Tip of the Month:  HOLDING BACK
DURING YOUR (MINI)OPENING:  For anyone who has a
forceful, alpha personality, taking your foot off the pedal can be incredibly difficult.  Taking a passive position seems especially difficult for trial attorneys; you are seemingly hard-wired to argue, persuade, and advocate for your client at all times.  99% of the time, that’s a terrific quality to have.  But in trial, there are a few specific situations in which you are far more effective when you slide over
into the passenger seat, or into the back seat if you’re the type who might be tempted to reach over and grab the wheel.

One situation I’ve already discussed (last September) is the first half of your opening statement.  My gist was that it’s tempting but incredibly counter-productive to criticize the opposing side, express opinions, and tell the jurors what to think before you’ve told the story of what happened and given the jurors the facts to begin drawing their own conclusions.

Many lawyers believe in trying cases fiercely, loudly, and emotionally, but at the beginning of your opening statement, your jurors have no reason to believe you yet.  And no matter how much you’re itching to tell your jurors that the plaintiff or defendant is lazy or unethical or irresponsible, you cannot attack the other side too soon.  It will backfire.  Not only will your jurors not believe you—because they have no reason to trust you yet—but they’ll resent you and become distrustful of you throughout the rest of the trial.  You cannot force-feed your jurors and tell them what to think.  They hate it.  They’ll view you as manipulative and pushy.  To the jury, attacking the other side before you’ve given your jurors your reasons sounds like you’re jumping to conclusions.  They’ll view you as
unreasonable, even though you know the case backward and  forward.  Any judgment slipped into your opening statement too early, no matter how well-meaning, alienates the jury.  Instead of telling your jurors what to think, you have to show them first.  Jurors want to think for themselves.  Tell a clear story without editorializing or summarizing.

This month, I’m going to focus on one unique situation in which it’s smarter to take a passive, back-seat role than to aggressively try your case:  in a “mini” opening statement.  For those of you who haven’t been asked to present a mini-opening, it is a brief opening statement that your judge asks each side to present to the jury before the voir dire process, usually in lieu of the judge reading a boring, neutral joint statement of the case.  I have seen judges give the lawyers anywhere from 2 to 5 minutes for a mini-opening, and the purpose is to give the jurors a flavor of the case to get them interested and to put the jury selection questions in better context.  I’m guessing that many courts and venues don’t do “mini” openings, so this advice may not apply to you, but more and more judges across the country seem to be switching to mini-openings, so don’t be surprised if you are asked to give one sometime in the next few years.

Here’s my advice, which I understand is incredibly counter-intuitive:  lose your mini-opening.  Take a dive. I’m being a little overdramatic, but what I mean is this:  don’t try to win your mini-opening.  Don’t be persuasive.  Be happy if the other side makes their case seem like the stronger case, and be even happier if the other side oversells their case.  I realize that my approach
probably conflicts with every instinct you have as a lawyer, but the
mini-opening is the worst time to persuade your jurors, and you will not have lost your case by losing the mini-opening.

Winning the mini-opening might seem like a good thing; first impressions are the most important, and it’s never too early to start persuading your jurors, right?  Winning your mini-opening is incredibly dangerous, and it’s because voir dire comes next.

Even though they are instructed that the mini-opening and the real opening are not evidence, jurors don’t know the difference.

To your jurors, the facts are the facts, and once they’ve heard your mini, they believe they’ve heard the facts and the evidence.  They begin making up their minds.  And time and again, I have seen lawyers be so persuasive in the mini-opening that they end up losing all of their best jurors for cause.  Before they hear an opening
statement, your best jurors don’t know they will be immediately receptive to your case.  Once they hear a persuasive mini-opening, they’ll know it; the toothpaste will be out of the tube.  And one by one, your best jurors will tell opposing counsel during his or her voir dire that they cannot believe what their client did and cannot be fair.  By giving a persuasive mini-opening, you are making the opposing side’s voir dire incredibly easy.  And I can’t stress enough how often I’ve seen a persuasive mini-opening end in a great number of jurors being excused for cause.

On the other hand, losing the mini-opening is the best way to make your voir dire incredibly easy:  by glossing over your best facts and
arguments, and by focusing the jury on the issues in your case that are your biggest concerns and weaknesses, you can set the stage for your worst jurors to criticize your case, air their concerns, and talk their way off the jury.  If the other side is too persuasive (and they
often are), you could have an easy time getting your worst jurors off for cause.  And even if the other side’s mini doesn’t get your worst jurors off for cause, it makes it incredibly easy to identify your worst jurors.

The key to giving a good mini-opening is to highlight the warts in your case, while glossing over your strongest evidence.  Pull your punches, and save them for your real opening statement.

Present the other side’s best arguments for them (“it is true that the plaintiff was fired just a week after she became pregnant”), but hold back and don’t give your jurors your persuasive facts.  Just tell them
“but we will present evidence that the plaintiff was fired for other reasons, not because of her pregnancy,” instead of telling them how compelling your evidence will be (“the plaintiff was caught stealing from the cashier two days before she told anyone she needed a medical leave”).

Perhaps the best part about losing the mini-opening: you haven’t lost your opportunity to persuade your jurors, and losing your mini only lowers your jurors’ expectations for your case.  I can’t stress how many times I’ve seen my clients lose the mini-opening, select a panel that thinks it’s skeptical of our case (but is actually a good, receptive jury), and wow the jurors during the actual opening statement.  You can see the surprise in their faces when they hear our best facts for the first time, realize how much stronger our case is than they suspected, and you can see their skepticisms dissolve.
At the same time, winning the mini-opening only raises expectations.  I love when the other side oversells their case in the mini-opening, because the jurors react negatively when they realize that a case they thought was a slam-dunk turns out to be flawed.

Harry Plotkin, Jury Consultant
212 Madeline Drive
Monrovia, CA  91016
(626)975-4457
harry@yournextjury.com

1.     Marijuana Use Screening Tool
2.     TBI Case Management rates
3.     User friendly concussion assessment tools and compliance regimes
4.     Patient Care Protocols
5.     Domestic Violence and TBI Resources
6.     Center on Brain Injury Research and Training recruiting trainers

For more information about these topics, search the Listserv Archives at <https://list.nih.gov/cgi-bin/wa.exe?A0=TBISERV&t=&X=0237233782AA159466>.  The Archives provide in-depth information on current TBISERV topics. Related
materials are also available by signing into the Traumatic Brain Injury Collaboration Space (TBICS) at https://tbitac.norc.org/.

As the president of the Brain Injury Association of Hawaii, Ian Mattoch receives NASHIA’s updates of legislative hearings, briefs, reports, conferences, and webinar notices from Washington, DC.

CDC to Release Report on Unintentional Child
Injury and National Action Plan
On Monday, April 16, the Centers for Disease Control and Prevention (CDC) will be releasing a Vital Signs report which
presents the latest information about unintentional child injury in the United States and highlights strategies for addressing the issue. In conjunction with Vital Signs, CDC is also releasing the National Action Plan for Child Injury Prevention, developed in partnership with more than 60 stakeholders. The goals of the national Action Plan are to raise awareness about the problem of child injury and the effects on our nation, offer solutions by uniting stakeholders
around a common set of goals and strategies, and mobilize action to reduce child injury and death.

CDC will be providing a number of resources that partners can use to help promote child injury and the National Action Plan for Child Injury prevention, including: sample press release and newsletter
article, P&As, fact sheets, and social media tools.

Special Briefing Webinar
CDC is hosting a webinar on Monday, April 16, 2:30-3:30 pm (EDT). The Special Briefing, a webinar, will highlight new CDC
child injury data and the National Action Plan for Child Injury Prevention. For more information and to register: register
here.

CDC Vital Signs Town Hall Conference Teleconference
On Tuesday, April 17, from 2-3 pm (EDT), subject matter experts and other public health professionals will be available for a town hall teleconference on Child Injury. This teleconference provides a forum for State, tribal, local and territorial health, policy, and communication officials to broaden the conversation, build momentum, and ensure active implementation of evidence-based, effective programs within child injury prevention. For more details and to register: click here.

HHS and Education Announce Funding for Early
Education Programs
Yesterday, the U.S. Department of Education and U.S. Department of Health and Human Services announced that $133 million from
the 2012 Race to the Top fund will be available for continued investments in State-level, comprehensive early education reform. The Departments intend to fund down the FY 2011 slate and invite the next five applicants, Colorado, Illinois, New Mexico, Oregon, and Wisconsin, to apply.

In 2011, 35 States, D.C. and Puerto Rico applied to Race to the Top-Early Learning Challenge, creating plans that increase access to high-quality programs for children from low-income families, and
provide more children from birth to age 5 with a strong foundation needed to succeed in school and beyond. In December 2011, nine States were awarded grants-California, Delaware, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Rhode Island
and Washington.

The $133 million for additional Race to the Top-Early Learning Challenge State grants will come from a larger $550 million fund provided by Congress through the Department of Education’s FY 2012 budget. Additional dollars from the 2012 appropriation will
be used to run a new district-level Race to the Top competition. More details on the new competition will be available later this spring.

Centers for Medicare and Medicaid Services (CMS)
Announces Grant Funding
Last week, CMS announced that they will set aside almost $46.5 million for basic grant funding to be distributed to State Health Insurance Assistance Programs (SHIPs). This grant money will help people with Medicare get more information about their health benefits and health choices. The grants are available to 54 SHIP organizations throughout the United States. For more information
click on this link.

Upcoming Conference
2012 NASHIA SOS – HCBS Registration is Open
Yesterday, the NASHIA/NASUAD announced that registration is open for the combined State of the States in Head Injury Meeting and the National Home and Community Based Services (HCBS) Conference to be held in Arlington, VA, September 10-13, 2012. A discounted rate is available until August 3.

The overall conference offers a unique blend of policy, program, and practice issues for professionals interested in TBI and home and community based waivers for all ages and abilities. During September 11-13, a concurrent track will be offered on TBI best practices, covering a range of topics from rehabilitation to community-reintegration. On Sept. 10, NASHIA will hold its annual meeting and sponsor plenary and workshop sessions on TBI public policy, programs and best practices.

Due to the overwhelming success of last year’s NASUAD’s HCBS conference, many groups, including NASHIA, have decided to merge with the HCBS conference this year. The Administration on Aging has announced that the HCBS conference will be their official grantee conference for the year. Over 1,200 participants are expected, and will include federal, State, and local policymakers and those who administer, manage and deliver waiver and other HCBS programs, as well as a strong presence from U.S. Health and Human
Services ranging from AoA, CMS, HRSA, Office of Disability, SAMHSA, Office of Developmental Disabilities, and more. For more information click here.

National Work Incentives Seminar Event (Wise) Hold Ticket to Work Webinar
The National Work Incentives Seminar Event (WISE) will be holding a webinar on Ticket to Work. The subject of the upcoming webinar will be special Social Security Programs and rules that may apply to who participate in the program.  The webinar will be held on April 25, 2012 at 3pm EST. To register online and for more information click here.

USA TODAY – Better tests find record concussions among US troops

By Gregg Zoroya, USA TODAY

Improved battlefield diagnosis has led to a record number of concussions detected among U.S. troops fighting in Afghanistan
and Iraq last year, with an average of 16 inflicted each day last spring, according to newly released Pentagon figures.

For the full article, click on the following link:
http://www.usatoday.com/news/military/story/2012-04-12/brain-injuries-concussions-US-military-troops/54185894/1

Title: Head Impact Exposure in Youth Football
Authors: Ray W. Daniel, Steven Rowson, and Stefan M. Duma, Center for Injury Biomechanics, Virginia Tech-Wake Forest University
Abstract: The head impact exposure for athletes involved in football at the college and high school levels has been well documented; however, the head impact exposure of the youth population involved with football has yet to be investigated, despite its dramatically larger population. The objective of this study was to investigate the head
impact exposure in youth football. Impacts were monitored using a custom 12 accelerometer array equipped inside the helmets of seven players aged 7–8 years old during each game and practice for an entire season. A total of 748 impacts were collected from the 7 participating players during the season, with an average of 107 impacts per player. Linear accelerations ranged from 10 to 100g, and the rotational accelerations ranged from 52 to 7694 rad/s2. The majority of the high level impacts occurred during practices, with 29 of the 38 impacts above 40 g occurring in practices. Although less frequent, youth football can produce high head accelerations in the range of concussion causing impacts measured in adults. In order to minimize these most severe head impacts, youth football practices should be modified to eliminate high impact drills that do not replicate the game situations.  Click here to read the full text of this article: http://www.springerlink.com/content/r1w055654612u47j/fulltext.pdf
TBISERV is the listserv for the Federal TBI Program. TBISERV is moderated by the Federal TBI Program’s Technical  Assistance Center.

To search the TBISERV archives, visit: https://list.nih.gov/archives/tbiserv.html

As the population ages in western countries, traumatic brain injury (TBI) resulting mainly from falls is on the rise among the elderly, introducing new complications and treatment challenges, according to an article in Journal of Neurotrauma, a peer-reviewed journal from Mary Ann Liebert, Inc. The article is available free on the Journal of Neurotrauma website: http://online.liebertpub.com/doi/full/10.1089/neu.2011.1995

Nino Stochetti and colleagues from University of Milan and San Raffaele Hospital, Milan, and San Gerardo Hospital, Monza, Italy, reported that one in five patients in a series of adult TBI cases was 70 years of age or older. Increasing age is a predictor of worse outcomes in TBI, mainly due to a higher likelihood of bleeding in the brain, the presence of other chronic diseases, medication use, and diminished capacity for brain repair with age. However, early intensive interventions can produce good results, conclude the authors in the article “Traumatic Brain Injury in an Aging Population.”

TBISERV is the listserv for the Federal TBI Program.
TBISERV is moderated by the Federal TBI Program’s Technical Assistance Center.  To join the list, visit https://list.nih.gov/cgi-bin/wa.exe?REPORT&z=3&s=0.  To search the TBISERV archives, visit https://list.nih.gov/archives/tbiserv.html.

Traumatic brain injury (TBI) is the leading cause of death and disability for Americans under the age 45 and is increasing in
prevalence globally.  By 2020, TBI is projected to become the third
leading cause of morbidity and mortality in the world for persons of all ages.  There is also now increasing public recognition of the long-term health consequences of concussions, especially those sustained during sports and in the battlefield.

Against this background, it should come as good news that recent clinical evidence shows that state-of-the-art TBI care at medical centers with specialized units for the treatment of head trauma greatly reduces death rates and prevents disability, especially if care can be administered rapidly after the injury.  Therefore, the Joint Commission, the central body for accreditation of health care performance standards, has designated TBI as one of the disorders for which hospitals may seek certification for excellence.  In this way, treatment of TBI is becoming more similar to that of stroke, where it is widely understood that “time is brain”, and for which many hospitals have gained Joint Commission certification as stroke centers.

San Francisco General Hospital (SFGH) recently became the first medical center in the USA to achieve certification from the Joint
Commission for the treatment of TBI and, as such, now sets the standard for other hospitals to follow.  Four specific areas were cited as crucial to the TBI accreditation: the medical skills of the health care providers, neuromonitoring equipment and expertise in the Neuro Intensive Care Unit, medical imaging technologies and research.

The UCSF Department of Radiology and Biomedical Imaging plays an important role in the care of head injury patients at SFGH and contributes to the excellence in patient management that was recognized by the Joint Commission certification.  The CT and MRI scanning facilities at SFGH, including advanced capabilities such as CT angiography, CT perfusion, diffusion MRI, and blood-sensitive MRI, represent the imaging technologies that improve diagnosis,
prognosis, and treatment monitoring of head trauma.  This advanced
equipment is put to use by the superb skills of the technologists that perform the imaging exams and the highly-trained neuroradiologists that interpret them.  The high volume of TBI seen at SFGH contributes to the superior level of experience of the physicians and technologists providing imaging services, which in turn improves patient care.

The Department of Radiology, in collaboration with the Department of Neurosurgery and the Brain and Spinal Injury Center (BASIC) at SFGH, also plays a vital role in TBI research, as noted by the Joint Commission.  Two current imaging projects involving TBI patients are funded by the National Institutes of Health (NIH).  The first is a study of mild TBI using serial scans including functional MRI (fMRI) of brain activity and diffusion tensor imaging (DTI) of brain connectivity to examine the disruption of memory and attention caused by concussions.  The second is a large multi-center study of TBI using both CT and MRI that includes medical centers in New York, Pennsylvania, and Texas, for which UCSF serves as the primary site.  In addition to scans at SFGH, enrolled study patients also receive
state-of-the-art 3 Tesla MRI scans at the UCSF Center for Molecular and Functional Imaging at China Basin Landing. UCSF radiology and neurosurgery investigators recently received NIH funding for a study of computer-based cognitive training, including exercises to improve attention and memory, for the treatment of persistent cognitive difficulties following concussion.  In this new project, fMRI and DTI are used to monitor the changes in brain activity and brain connectivity produced by the training exercises.

In this way, the cutting-edge TBI research at UCSF and SFGH promises to lead to better health and well-being for the sufferers of head injury.

HHS Appoints Members to National Advisory Council on Alcohol Abuse
The U.S. Department of Health and Human Services (HHS) Secretary Kathleen Sebelius recently appointed four new members to the National Advisory Council on Alcohol Abuse and Alcoholism of the National Institute on Alcohol Abuse and Alcoholism (NIAAA).  The council advises the Secretary, the Director of the National Institutes of
Health and the director of NIAAA on program and policy matters, offers recommendations on research conducted at NIAAA, and reviews applications for grants and cooperative agreements.

SAMHSA Is Accepting Applications for Offender Reentry Program Grants
The Substance Abuse and Mental Health Services Administration (SAMHSA) is accepting applications for Offender Reentry grants.
The purpose of this program is to expand and/or enhance substance abuse treatment and related recovery and reentry services to sentenced adult offenders returning to the community from incarceration for criminal offenses.  SAMHSA expects that up to $13.8 miilion will be available for up to 12 grants of up to $400,000 per grant annually, over the three year grant period.  Domestic public
and private nonprofit entities are eligible to apply. Applications for No. TI-12-003 are available by calling SAMHSA’s Information Line at 1-877-SAMHSA7 [TDD: 1 800-487-4889] or by downloading the application at http://www.samhsa.gov/grants/index.aspx). The due date is May 1, 2012.

CMS Initiative to Reduce Avoidable Hospitalizations Among Nursing Facility Residents
The Centers for Medicare & Medicaid Services (CMS) Medicare-Medicaid Coordination Office (MMCO), the Center for Medicare and
Medicaid Innovation (Innovation  Center), and the Center for Medicaid and CHIP Services (CMCS) issued an Informational Bulletin to inform States about a new CMS opportunity, the Initiative to Reduce Avoidable Hospitalizations among Nursing Facility Residents (“Initiative”). The Initiative will focus on beneficiaries who are eligible for both Medicare and Medicaid (often known as “dual eligibles” or Medicare-Medicaid enrollees).  Organizations interested in applying to participate in this Initiative must submit a proposal to CMS by June 14, 2012. CMS is requiring interested organizations to submit a
non-binding Notice of Intent to Apply by April 30, 2012. The Request for Applications is available by searching for CFDA 93.621 at: www.grants.gov. CMS will host a webinar to discuss the Initiative. More information will be available at: https://www.cms.gov/medicare-medicaid-coordination/09_ReducingAvoidableHospitalizationsAmongNursingFacilityResidents.asp#TopOfPage

CMS Issues Final Rule on Medicaid Eligibility and ACA
On March 16, 2012, CMS released its eligibility and enrollment final rule to assist States in implementing the Affordable Care Act (ACA) Medicaid coverage expansion. The rule includes certain changes and clarifications to ease transitions between Medicaid and Exchange coverage and help patients avoid gaps in coverage. Under the ACA, millions of uninsured Americans will gain access to affordable coverage through Affordable Insurance Exchanges and improvements in Medicaid and the Children’s Health Insurance Program (CHIP). These programs will use consistent standards and systems to seamlessly and efficiently meet consumers’ healthcare needs, improve quality, and lower costs. To see the rule go to:  http://www.medicaid.gov/Federal-Policy-Guidance/Downloads/REG-03-16-12.pdf.

Real Warriors Campaign Launches New Campaign
During the past quarter, the Real Warriors Campaign developed new tools and resources designed specifically to keep active duty service members, veterans, National Guardsmen, reservists and military families informed of available resources for psychological health care and support. The Real Warriors Campaign launched a new video profile of Navy Chaplain (Lt. Cmdr.) Steve Dundas. During Chaplain Dundas’ deployment to Iraq, he experienced combat first-hand while providing support to service members. He returned home feeling depressed, angry and disconnected from his faith, but with the support of his command, he received care for PTSD and learned tools
and tips for coping with invisible wounds. Watch Chaplain Dundas’ video at www.realwarriors.net/multimedia/profiles/dundas.php.

The Campaign is offering a new weekly Podcast Series, “Real Warriors, Real Advice”, in which warriors, veterans and military families highlight the importance of seeking care for invisible wounds and offer tools and tips on building and maintaining psychological resilience. You can access and download episodes from the campaign website (www.realwarriors.net/podcasts) or subscribe to receive the
weekly updates automatically.

AAPD Is Accepting Applications for Youth Transitions Fellowship
The American Association of People with Disabilities (AAPD), in coordination with The HSC Foundation, is now accepting applications for the 2012-2013 Youth Transitions Fellow. The Youth Transitions
Fellow will gain exposure to youth programs serving people with disabilities and will have the opportunity to facilitate collaboration among internship, fellowship, and apprenticeship programs based in the Greater Washington, DC area. This paid fellowship position at AAPD is ideal for a recent college graduate with a disability who is looking to jump start a career and help peers transition to the workplace. The fellowship will start in May, 2012 and continue for 12 months. For more information or to apply, visit: http://www.aapd.com/what-powers-us/work-at-aapd.html. The
deadline is April 30th, 2012.