ATLA review of Polarizing the Case: Exposing and Defeating the Malingering Myth
Posted by Alex Miller on Oct 15, 2009
Reviewed by Todd Jones, Esq. ATLA Docket (Oct. 2009)
Polarizing the Case should be required reading for every plaintiff’s lawyer. Not only does Rick Friedman do a masterful job of formulating and describing a cogent, well-rounded and effective strategy for aggressively defeating the malingering defense, he shows the reader how to go about doing it in the real world. The reader understands immediately that the author has been in the trenches and is speaking from that experience rather than from an ivory tower.
Of the many things I admire about this book, chief among them is how it completes the circle that so many books of its kind leave wide open. Part I of the book is about identifying the problem, laying out the strategy and understanding the various psychological dimensions.
Part II, however, unlike other books, closes the loop by showing the reader, with an actual trial transcript (a trial which was conducted while the author was writing Part I of the book), how the strategy described can be implemented successfully at trial. Part I is the instruction. Part II is the demonstration.
Throughout the book, the author is self-deprecating and seems less concerned with impressing everyone with how smart he is than he is with teaching. For instance, in Part II, the transcript portion of the book, the author intersperses commentary like this: "as you can see, there is nothing fancy or remarkable going on here. Nothing you couldn’t do." I found that kind of modesty refreshing in such an accomplished trial lawyer, a rare combination indeed.
The book not only describes and demonstrates how to carry off the Polarizing method, I also found it instructive and helpful more generally. There is, for example, a real world example of an excellent closing argument, one which not only applies the principles espoused by the book, but which also, among other things, demonstrates a creative way to address the issue of money with the jury.
Fundamentally, however, this book is about how to expose and defeat the malingering defense. It’s about taking the fight to the enemy. It was written for every lawyer who has seen his or her good, honest client be made, directly or indirectly, to look like a liar, exaggerator or fake at trial. When the defense has "thrown down the gauntlet… this book will teach you how to recognize it, pick it up, and then stuff it down their throats."
We’ve all been there. You know your client’s character is being attacked, sometimes directly, but usually by suggestion and innuendo, but you just aren’t sure what to do about it. It can seem reasonable to ignore it or minimize it as best you can; to see it as transparent, self serving and devoid of substance. We think (or hope) no one will buy it. We don’t want to dignify it with a response or magnify the issue, right? Wrong.
The sad fact is that it does work. The author likens the situation to the one the Kerry campaign faced when its candidate, a war hero, was attacked on his record of military service. It’s natural to be incredulous, to be in shock that they would dare go there. Surely this will backfire. How stupid can they be? On the contrary. Unfortunately, if uncontested, these scurrilous attacks work and work well (did you know Obama wants to pull the plug on Grandma?) which is why the author argues, in the trial context, how important it is to address it boldly and comprehensively when even the slightest hint of its rotten odor wafts into the courtroom.