WAGE LOSS/LOSS OF EARNING CAPACITY
Special damages are more important today than ever before. In spinal cord injury cases, your clients will have significant demonstrative losses. DO NOT OVERREACH. If your client can possibly work, explore all options with an appropriate vocational rehabilitation specialist. Present several alternative options, leaving the jury with the option.
Continue Reading...I am one of our firm's 'road warriors' -depositions, client meetings, meeting with witnesses. Invariably the need for a notary will arise.
I'm a Notary. It's so ridiculously easy and cheap, it is a wonder more attorneys are not. How does being a Notary help?
1)I met a witness last week in a city about 300 miles away. The facts I gathered were simply written out, attested to by the witness, and then notarized. To be on the safe side I took a photo of the driver's license of the witness. Easy.
2)A small town medical provider had records in that same town where the witness was located. I prepared in advance a records certification, and when they informed no notary was available, no problem. (I may have to deal with evidentiary issues later, but for now it worked).
3)When a client travels to my office for a late afternoon meeting there were times when the staffers who were NPs had left, and we had to track down one in the building. Never again.
Take the time to apply, and you are set.
Expert’s deposition. While there is no substitute for being prepared, you can take an effective deposition "on the fly" by remembering five essential questions and their logical subquestions:
1. Who engaged you in this case.
2. What they ask you to do?
3. What did you do?
4. What conclusions, opinions did you reach and what do you intend to testify to at trial?
5. Where there any other test- analysis or things you could have done or would have liked to?
EVALUATING INJURY
A young lawyer today is far more likely to encounter a case involving paraplegia or quadriplegia than an experienced lawyer of twenty years ago. Clearly, victims of spinal cord injury benefit from recent medical advances in treatment, particularly rehabilitative treatment. Rehabilitation centers throughout the United States can assist (certainly more than twenty years ago) in getting the plaintiff back to a productive, albeit limited, lifestyle.
Continue Reading...Let’s face it, cases involving spinal cord injury are major commitments requiring a significant investment both of attorney time and resource. A spinal cord injury is a catastrophic event, impacting upon the life of the survivor as well as his/her family. Damages in any catastrophic case are extensive, and this is no less true in a case involving spinal cord injury. Yet, speak to any seasoned trial lawyer, and you will learn that the problems associated with trial of a spinal cord injury case can be numerous, and potentially life threatening to the plaintiff.
Continue Reading...In most cases, you have at least one demonstrative exhibit that will will shock or wow the jury. A common mistake is to overexpose that picture to the jury, thereby desensitizing them to it.
Another way to do that it to put a black border tape around all of your foam core exhibits. Except for he one exhibit. Put red border tape around that exhibit. When your foam core boards are leaning up against the wall, the jury will see that they all have black border tape except for the one. That will heighten their curiosity in seeing that exhibit.
After they have seen the exhibit and the boards are leaning up against the wall, they will notice the red border standing out among the black borders and it will remind them of the exhibit without even seeing the picture.
In May 2006, significant changes were made to the Medicare regulations concerning Providers’ ability to “bill” the liability insurance proceeds. Medicare Participating Providers may now wait and bill the beneficiary (liability settlement) for the actual charges. Previously, Participating Providers were required to bill Medicare, as “billing” against the settlement proceeds was, in effect, the same as billing the beneficiary, which was a violation of the Participating Provider “assignment agreement”.
Effective May 8, 2006, CMS Medicare issued a policy change to the billing procedure for providers, physicians and suppliers with regards to payment for services where liability insurance is available.
Continue Reading..."It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way- in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only."
And so opens a Tale of Two Cities by Charles Dickens. It's a moving passage and one of the most quoted paragraphs in the English language. However, compare it to this picture from a comic book educational text Marx for Beginners.
Which one gets the point across better? Work on your demonstrative exhibits so that they really tell your point of view and the get to the point of your case. As you can see from the picture above, it's worth the effort.
I read with interest Mark Zamoras's blog post on demand packages. I fully share Mark's thoughts. Another good idea we think is to send out your discovery and the complaint with the demand package. Our thinking is that most insurance adjusters have between 100 and 300 pending files at any given time. As Mark indicated in his post, it is a good idea to set a certain date upon which you expect a response. Sending the complaint and discovery also sends the right message to the claims rep in terms of getting a more immediate response. It takes a little extra time to prepare the pleadings but will get the attention of your adjuster, particularly if you have a history of successfully trying cases against that insurance company.
Perhaps more importantly, it will also help from an administrative point of view because there is one less time you need to meaningfully touch the file before filing suit. One of the great benefits of being a Plaintiff's lawyer is the ability to "preload the gun" for lack of a better metaphor. We even include in our demand packages our expert designations just because, again, it is one less filing deadline we have to meet if you have all of your filing documents ready to go. (If you doubt the efficacy of this, get on Westlaw and look to see how disputes arise because someone failed to name experts in a timely fashion.) Of course, you still need to note the expert's deadline in the event that new experts have been uncovered over the course of discovery. But 75% of the time, this is not the case, and you have saved yourself one more hoop to jump through.
We're still in the process of getting everyone trained on how to enter posts, so the posting will be rather light for the next week.
In the meantime, enjoy the posts that are here and we'll start cranking out quality information in very short order.
So far, we've had a very positive response to the blog and all of the participants are looking forward to getting information up here on a regular basis.
We will soon come to a close of the sixth year of a new millennium…something new – something old! We look to the future hoping that what we have learned in the past will help us make the right decisions. We see changes in the law. We see changes in advocacy techniques. We see changes in our profession and the very way in which lawyers are practicing and will practice law. Yet we must often look perhaps to events that did not occur or things that did not happen in order to figure out where we are and where we are going. These “non-events” often provide us with the key to the truth!
Often, counsel must prove that a given event did not occur or that a particular sound was not made or heard. Where the attending circumstances show that it has probative force that it is relevant and material evidence proving that an event did not occur is admissible and may often have a devastating effect on the case. This is “negative evidence.”
Negative evidence is evidence that a fact did not exist or that a thing was not done, did not take place, or that a witness did not hear, see, feel, touch, taste, or smell. Many courts consider that negative evidence lacks the force of positive evidence, since the memory of a witness is considered more reliable when he testifies to something that occurred as opposed to something that did not. If this is true, it should go to the weight of the evidence and not to its admissibility.
Of course, negative evidence must be relevant that is, it must logically tend to prove or disprove a material fact. Where the evidence is logically probative, it is relevant and will be admissible unless there is a reason for not allowing the jury to consider it. In determining whether a fact has probative value, the fact for which the evidence is offered to prove or disprove must be identified. The same evidence can be relevant to one purpose and irrelevant or immaterial for another. If evidence is offered to prove or disprove a fact or circumstance which is not a matter in issue, it is said to be immaterial.
The term “strategy” has been bantered around by so many different people in so many different ways under so many different sets of circumstances that often we lose sight of the true meaning of the term “strategy.” Some people will say that the strategy of a team in the Super Bowl Game is “to put the ball in the end zone.” That is not strategy at all but merely an end result or goal. Others will say that the strategy in a real estate negotiation deal is to “sign the papers and wrap up the deal.” That is not a strategy at all but rather a destination at the end of a journey. Therefore, for us to begin this exercise as trial advocates, we must have a plain and straightforward definition or explanation of the term “strategy.” Accordingly, we will define “STRATEGY” as follows: Strategy comes in two parts – (a) the step-by-step logical, methodological, and analytical means by which one determines a course of specific action or actions to take or to avoid in order to defeat one’s opponent on a given issue, in a given battle, or in any other form of competition or combat; and (b) a positive approach combined with a negative approach (i.e. playing devil’s advocate) to putting into effect those actual steps that must be taken or avoided to defeat your opponent. “Strategy” is therefore not the end but rather the means to the end. Your strategy – simply put – is the way you figure out how in the world you are going to figure out a way to defeat an opponent in any given situation combined with figuring out all of the different ways your opponent is going to utilize to figure out a way to defeating you. Here is the problem – most trial advocates only take the first part of the approach…by figuring out the steps they need to take to defeat their opponent and ignore the logical analysis being conducted by the opponent as he or she figures out the steps to take or avoid to defeat you.
Continue Reading...Plaintiff lawyers often struggle with determining how to best prove and argue damages during trial. This is especially so when it comes to proof and argument of “physical pain and suffering.” On the other hand, defense lawyers for insurance companies and manufacturers concern themselves with determining the right methodology to use at trial in order to defeat plaintiff’s claims of various types of damages. Advocates on each side are in a constant tug-of-war simply trying to figure out how to enhance or diminish damages during the trial and certainly during summations. One method to consider in your upcoming trials is that of the “pain equilibration” method of proving and arguing damages.
The “pain equilibration” method of proving and arguing damages can be described as follows: It is a method whereby plaintiff’s counsel, through expert testimony, demonstrates the comparative pain of plaintiff “as compared to” similar forms of pain caused by other types of trauma or pain-inducing instances. Pain equilibration is a method utilized to compare pain of various types to a common denominator amount of pain. The common denominator for equilibration is the pain medication used for analgesia pain relief. What you are trying to do is simply provide the judge and jury with a method of understanding a quantification of pain in a description which translates to accepted, common pain types and for which a well-agreed-upon dosage amount of medication is used for analgesia. This method will assist the judge and jury in understanding the level of pain and suffering experienced by the injured person requiring pain relief.
Consider this: If the trial advocate is attempting to show the excruciating pain that her client has endured both before, during, and after a three-level cervical fusion, wouldn’t it be helpful to the jury if the advocate could prove that, for example: The pain Mary has endured during this 24-month period is equal to the pain a woman would endure in going through 91 hours of labor?
Continue Reading...In researching a post yesterday for the Maryland Personal Injury Lawyer Blog, I stumbled upon the law review article SYMPOSIUM: COMMUNICATING WITH JURIES: Whipped by Whiplash? The Challenges of Jury Communication in Lawsuits Involving Connective Tissue Injury, 67 Tenn. L. Rev. 569 (2000). The article addresses the sometimes understandable problem plaintiffs' lawyer have in bringing soft tissue injuries to a skeptical jury. Most Maryland personal injury lawyers, do not bring many soft tissue claims to a jury because Maryland jurisdictional limits are such that connective tissue injury cases are usually tried before a judge (except in Baltimore because the district court judges are conservative and the juries are more liberal, many lawyers file what should be district court cases in circuit court). But the article made a number of interesting points that I thought many would find of interest:
1) The neck brace, which is obviously a common treatment for soft tissue neck injuries, appears to be a real lighting rod to jurors who view a neck brace as a potent symbol of fraud. The author contends that a neck brace "exacerbate[s] distrust and hostility., quoting one mock juror "I may see somebody with a neck brace. My first reaction is I don't believe you....." This does not surprise me. I had a case where a Baltimore City, jury awarded my client $300,000 and still on of the juror's told counsel later he believe she was faking her injuries to some extent. (The stunned defense lawyer asked incredulously "Then, sir, why did you give her $300,000?!" You had to be there but it was one of the funniest moments of my legal career).
2) Although there are studies that cast at least some doubt to this premise, the amount of damage to the vehicles in a car accident case are a crucial determinant of whether an injury is perceived as legitimate and serious. One participant comment that "Nowadays, the cars are made, they just bump into each other and there's gonna be some kind of damage. They just look at each other and they break. So, I mean, if there's no damage to the cars, it's kind of hard to think it'd be hard enough to injure anybody."
3) The article cites a poll that provided a systematic opportunity to ask potential jurors about their general views of the severity of different types of injury. Below is a table that provides the average rating given for different types of injuries that occur in automobile accident cases. The ratings are interesting and have some implications for communicating with not only with juries but also judges in bench trials.
Ratings of Injury Severity/Type of Injury Mean Rating of Severity
Trauma to internal organs 8.64
A ruptured disc 8.28
A back injury 8.07
A neck injury 7.97
A herniated disc 7.80
Bulging discs 7.67
A nerve injury 7.54
A broken bone 6.44
Whiplash 6.20
A connective tissue injury 5.91
Hyperflexion 5.33
A muscle injury 5.08
A soft tissue injury 4.65
Trauma to the skin 4.44
A skin laceration 4.00
A strain 3.77
A sprain 3.48
A bruise 2.38
Honestly, I'm not sure quite what to make of this information. But when I have to try a case that involves on some level subjective complaints of pain, I'm going to refer back to this post to consider the language I use when presenting plaintiff's case.
One of the significant problems with running a plaintiff's practice is managing cash flow. Any fees earned are usually contingent fees, and cases are not always resolved in such a way and a such a time to meet professional and personal financial obligations.
There are at least four different ways to address this issue. First, you can visit your friendly banker and arrange a line of credit that you dip into went you need to meet payroll, significant expert expenses, etc. This is probably the most common way of handling the situation.
Second, you can do business with a company that provides funding for plaintiff's lawyers. Here is an article describing what these companies do and what they charge. There are several different models out there and the interest rates for each of them are much higher than you would expect to pay a bank.
Here is a tip that will improve the quality of your law practice and your life - look at the law first.
Oh, it is different in the run of the mill auto case or other cases that you routinely handle. And it is different if you have recently handled a case that presented the same issues. But unless the new case you have just been offered falls into one of the above senarios take a little time and confirm (or enlarge) your understanding of the law before you accept a new matter.
Why? The law changes - Tennessee appellate courts issue over 200 tort opinions a year. Moreover, as we get older and busier, our memory of what we think the law is can sometimes be just plain wrong. It is far better to spend a little time examining the law before we accept a case than it is to be surprised by a motion to dismiss.
In fact, I can say that one of two things is almost certainly true when a lawyer is surprised by a motion to dismiss. First, the lawyer did not do his or her homework. If a plaintiff's lawyer is "pushing the envelope" he or she should not be surprised by a motion to dismiss and indeed should welcome it.
Continue Reading...The "smoking gun" document does not do you any good unless you can find a way to get it introduced in to evidence. You have to determine what foundation must be established to introduce the document into evidence, call the witness or witnesses necessary to establish that foundation, and be able to link the document to your theory of the case as set forth in the complaint (to establish that it is relevant).
Here is an article by Leslie O'Tool and Wendy Sexton, two defense lawyers, which explains how your opponents intend to try to keep that smoking gun document out of evidence.
The article appeared in the Fall, 2005 edition of FDCC Quarterly, PDF page 79.
Here is a great case out of Illinois that reminds us of the importance of asking each fact witness about whether they have made any personal notes concerning the event at issue. In Cangelosi v. Capasso, No. 03--L--392, (Ill. Ct. App, 2nd Dis. June 30, 2006), plaintiff asked that a nurse who made personal notes about treatment made within a day of the event at issue be compelled to produce them in litigation. She resisted that effort, saying that she made the notes in contemplation of litigation. At her deposition, the nurse "testified that her notes memorialized factual things that she saw, factual things that she did, and factual things that she saw other people do. The notes include things that the doctors may have said during her shift regarding plaintiff's care. After completing her notes, defendant nurse] placed them in a folder in her kitchen cabinet. " The court ordered production of the notes, saying that they were not protected by the attorney - client privilege because they were not a communication to an attorney for purposes of securing legal advice. Nor were they protected by the work product doctrine, because " they do not 'contain or disclose the theories, mental impressions, or litigation plans of the party's attorney.'" I have been in cases where a nurse or other fact witness went home after the event and made personal notes about what occurred. The information contained in those notes is often very helpful to the case. Read the decision here.
David Swanner is a sole practitioner in Myrtle Beach, South Carolina. He is a plaintiff's attorney with a civil litigation and workers compensation pr...More...
Gary Gober, a graduate of Harvard University and Vanderbilt University School of Law, has concentrated in trial practice for over 35 years. In 1995 he...More...
Guest Posts from trial lawyers and others interested in trial work from around the country....More...
Jay Harris was born and educated in a small Ohio town that was named after our first president’s plantation. He has practiced law in Ohio for over 35...More...
John A. Day is a fifty year old lawyer who is fascinated by the law of torts. He represents plaintiffs in personal injury andwrongful death cases and...More...
John F. Romano of West Palm Beach, Florida, is a senior partner in the West Palm Beach, Florida, law firm of Romano Eriksen & Cronin. He is board-cer...More...
Karen Shelton, of Charleston, South Carolina, is an independent Medical-Legal Case Developer working primarily with Attorney David Pearlman, of Steinb...More...
Mark Zamora is an attorney in Atlanta, Georgia. He is licensed in Florida and Georgia. A graduate of Cumberland School of Law in Birmingham, Alabama a...More...
Matt Garretson is the founding partner of The Garretson Law Firm which provides mass tort / class action settlement allocation and fund administration...More...
Randall H. Scarlett, principal of San Francisco based Scarlett Law Group, concentrates his practice in the areas of catastrophic personal injury, brai...More...
Fredrick Kuykendall has practiced law for over 25 years. He has been included in The Best Lawyers in America. He has tried all types of cases, involvi...More...
Ronald V. Miller, Jr. is a personal injury lawyer in Maryland. His law firm, Miller & Zois, is a five lawyer firm that handles exclusively personal i...More...
Todd J. O'Malley brings over 30 years experience of legal practice to the firm, exemplifying a fine track record of successful case verdicts regarding...More...
Thomas R. Kline has forged an incomparable record of courtroom victories, in three decades of practicing personal injury law -- some with remarkable r...More...Enter keywords:
