Relative’s Testimony and Video Can Help

From – Missouri Lawyers Weekly

by Kristen Garroway

July 22, 2002

Trying a lawsuit in which one of the parties has died or become incapacitated by the time of trial presents unique challenges to attorneys, as a recent Jefferson County case shows.

In that slip-and-fall case the plaintiff died of cancer before trial, which – in addition to presenting evidentiary problems -created a “psychological disadvantage” for the estate in front of the jury, according to the attorney for the estate.


“The jury’s going to know that [the claim is] for the injuries of the lady who died and that any money they award will go to the surviving husband,” said St. Louis attorney Donald L. Schlapprizzi. “You ‘re arguing in favor of dumping a bunch of money on the surviving spouse for someone else’s harm.”

But experts says that, regardless of a party’s death or incapacity, an attorney can still reach a favorable result by”

  • preserving testimony and gathering other relevant evidence early in the case of the client is in poor health;


  • developing a more extensive evidentiary record to demonstrate facts when a party is unable to testify;


  • presenting witnesses and other evidence designed to paint a picture of the dead or incapacitated party for the jury; and


  • alerting the court of the attorney suspects that an unrepresented party has become incapacitated.

Uphill Battle

The difficulties of representing a party who has died or become incapacitated were illustrated by the personal injury lawsuit filed by Dorothy Skaggs against the First Assembly of God Church.

Skaggs, who was the minister’s wife, slipped and fell down a flight of stairs at the church in Hillsboro in 1995. She fractured both shoulders and injured her wrist and tail bone. Skaggs, 54, later died of cancer so her estate was substituted as the plaintiff in her place. At trial, Schlapprizzi argued that the stairway was below reasonable standards because the stairs were too steep and their foot tread too narrow. He also argued that the riser was too high and there was no banister on the right side of the stairway.

The church claimed that Skaggs should have used the left banister. The jury decided that the church was 65 percent at fault and that Skaggs was 35 percent at fault, and judgment was entered for $240,000.

Schlapprizzi said, “Whenever you’re trying a case where your client isn’t there or can’t be there, you’re facing an uphill battle.”

He attempted to meet the challenge from the start of voir dire by addressing the fact that he was representing the woman’s estate rather than the woman.

“Because of the psychological impact that might have on some people, I covered that heavily during voir dire and made it clear that this is the only way that this wrong can be righted,” Schlapprizzi said. “You have to make absolutely certain that the jury understand that this is a mechanism of the law that allows for the wrong to be corrected – that even though she is not living, the substance of her claim is still alive.”

Once the trial was under way, Schlapprizzi had to deal with humanizing a plaintiff that the jury could not see. “In cases where the person dies, I’ve always felt that it was incumbent on you as the attorney to make that person live,” said Schlapprizzi. “What we try to do is get recent photographs of them with family members, video showing how active they were, what kind of people they were, how they interacted, so the jury can see what they were like.”

In Skagg’s case, Schlapprizzi said, “We knew she was in a terminal situation so we took a video deposition of her to preserve her testimony and I think it was probably the most telling feature of the whole case. She was a very sweet, gentle woman and a lovely person and expressed herself very well. Since she couldn’t be there, that was the next best thing to it, so we used that medium to make her live.”

A full verdict report on the case, Skaggs v. First Assembly of God appeared in the June 24 issue.

Caruthersville attorney W. Edward Reeves said that the unexpected death of a party is even more difficult to deal with.

“It can create enormous evidentiary problems, particularly if it’s someone who dies quite suddenly and you haven’t had the opportunity to do something in advance to preserve the testimony of that person,” Reeves said.

“It can have a tremendous impact on the outcome of the litigation, assuming that what’s in that person’s head is relevant to the outcome,” he said.

Schlapprizzi said that in situations where preserving testimony is impossible, it becomes even more crucial to establish facts through other witnesses, day-in-the-life videos and documentary evidence.

The jury needs “to know about them and be acquainted with them and, in a sense, like them,” Schlapprizzi said. “That’s a very big feature. We bring in priests, pastors, schoolteachers, co-workers, everything to let the jury know that this person isn’t just a name.”

He cited a medical malpractice case he filed on behalf of a 14-year old boy who was completely incapacitated after a neurosurgical procedure. “We used his family to relate what the doctors said and what had occurred and what the nurses did or didn’t do, and then used the hospital chart to establish what they said happened.

“Then we used videos of the ked when he played the piano and basketball” to contrast the way he was at the time of trial to the way he was before surgery .

According to Kennett attorney Terry McVey, it can be especially challenging for a plaintiffs lawyer to try a case when the defendant is unavailable at trial. McVey said that he recently represented a client who was suing for specific performance of an option contract against a 90-year-old man who had become incapacitated.

McVey said the man’s incapacity “created some real problems as far as some of the things I wanted to prove in the transaction. Plus, it allowed the opposition to paint the incapacitated person in kind of a different light than he really was.

“Basically, he was an elderly person who had been a very astute, very sharp businessman and had amassed quite a bit of land holdings, and I was representing a younger person with an aggressive type personality.

“They were able to portray this defendant as a kindly, doddering old guy who was taken advantage of by this younger, aggressive person, which really wasn’t the case,” he said. “But they were able to do that because he was incapacitated at the time of litigation and. that perception in front of the trier of fact.

“You don’t want to beat up on an old man,” he said. To overcome this obstacle, McVey said that he had to present “a very document-intensive case.”

“I got all the bank records that I could and all his bank transactions and I even had the person who handled most of his bank transactions to testify to his actions at the time [that he entered into the option contract] and after that time. He made several bank deals concerning moving his money around and other transactions after this option contract was entered into and I got all those documents, just as evidence that he knew what he was doing and that he was controlling his money and people relied on him, such as his business partners.”

McVey also presented witness testimony from the attorney who drew up the option contract regarding his observations about the man’s state of mind at the time of the transaction, as well as several people who observed and had conversations with the man while he was sitting in the waiting room at the attorney’s office.

“It’s evidence that you would probably show anyway even if the person was there, but it would be cumulative or supporting evidence,” McVey said. “If you don’t have a person there, that’s how you make your case.”

Alert the Court

Clayton attorney Leigh Joy Carson noted that it can also be difficult to determine how to proceed in a case when a client appears to be incapacitated but no guardian or conservator has been appointed.

“Representing a person who is mentally incapacitated can be a real challenge,” she said. “They have no idea, no clue, what the judge is suggesting.

“With one case that I had, the guardian ad litem and I would talk to [the client] and explain the proceedings to her and [the guardian ad litem] felt like she had enough of a handle on it. I still believe that the woman should have had a conservator.”

Carson advises attorneys to alert the court “if there is any question about capacity” because Missouri rules require attorneys to bring it to the court’s attention and because any judgment rendered against an incapacitated person without a legal representative is void. She also advises attorneys to contact an expert such as a physician or psychiatrist if they have concerns.

Moreover, Carson said, “If they’ve got a court-appointed guardian or conservator, you have to be sure to preserve the dignity [of the person]. I always make it a point to continue to communicate with the incapacitated person even though they can’t make decisions.

“You have to respect them and treat them as clients so that they feel part of the process.”