Trial Lawyer Resource Center

The auto tort case I tried involved a car accident involving a car that pulled out of a gas station and hit our client.  At trial, the Defendant claimed the car must have been coming so fast that he could not have seen the Plaintiff coming.  I think I showed through the Defendant's illogical time/speed/distance estimations that the accident did not happen as he suggested. 

But some jurors told me after the trial that the Google Earth images I used at trial were very helpful in demonstrating how the Defendant's story was not plausable.   It is funny, years ago before Google Earth was availabile I remember auto accident lawyers paying for overhead photographs of car accident scenes.   Now they are easily available yet no one uses them.

Jurors appreciate the clarity that overhead pictures provide and you get credit with them for being the lawyer that provided it to them.   It is worth the 10 minute investment.  

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Oklahoma Governor Brad Henry vetoed a bill yesterday that required Oklahoma lawyers representing medical malpractice victims to obtain certificates of legal merit from a medical doctor before filing a malpractice lawsuit, citing an Oklahoma Supreme Court ruling that requiring a certificate of merit is unconstitutional.

When bringing a medical malpractice action in most jurisdictions, a medical malpractice lawyer must file a separate certificate of merit for each doctor or other medical provider setting forth that to a reasonable degree of medical probability, the medical provider's malpractice caused the plaintiff injury. I do not know the nuances of the bill.

I am sure that Governor Henry believes he is fighting for the rights of medical malpractice victims or is correct on the issue of whether the statute would pass the Oklahoma Supreme Court. But I’m not sure if a certificate of merit is a bad idea to discourage frivolous medical malpractice lawsuits. The problem is that frivolous malpractice cases reflect poorly on medical malpractice lawyers and their clients which hurts when a lawyer is trying a meritorious medical malpractice claim to a jury.

The gut reaction in any litigation context - especially medical malpractice - is that it is a zero sum game.  What is good for the bad guy is bad for the good guys. The corollary argument is that medical malpractice reform is a slippery slope: first certificates of merit and then a Texas-like cap on malpractice awards. But life is is lived on a slippery slope. Free speech and freedom of assembly can lead to chaos and police can lead to totalitarianism. At some point, in a democracy, we need to trust that we will know where to draw the lines. Accordingly, before malpractice lawyers celebrate this veto, they might want to consider whether this bill was the best thing for both Oklahoma medical malpractice lawyers and Oklahoma doctors.

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What I hated most about being a defense lawyer was that 75% of the work that you did seemed to have nothing to do with getting a good result in the case. Instead, we were always working to make our firm look good to the client. (Note: I was never very good at that anyway because the filter I had to root out all of the things that I thought but should have said was somewhat defective.) They talk about doctors practicing defensive medicine. Defense lawyer practice defensive law about 10 times worse that doctors practice defensive medicine. Anyway, the one that about the defensive practice of law (if you have not heard that expression before, I just made it up 2 minutes ago) is that it does keep you on guard. Plaintiffs' lawyers tend to be more relaxed and more focused on what really matters.This is usually a good thing. Where it can go wrong is in dealings with experts. When I was a defense lawyer, I can't tell you how many times we would find a "nice fishing with you on Thursday" or "great having dinner with you" line in correspondence from a personal injury lawyer to his/her expert. I never tried a case with that kind of ammo. But it sure would be fun. The take home message of all of this is do not send a letter, email or even leave a telephone message to an expert (or fact witness) that you would not like to read to a jury. Smart defense lawyers always subpoena an expert's entire file and even if the substance is innocent, it is going to be take out of context.

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My office is investigating the makers of Total Body Formula, a supplement  that was recently recalled.

The U.S. Food and Drug Administration is advising consumers not to purchase or consume Total Body Formula in the flavors of Tropical Orange and Peach Nectar, or Total Body Mega Formula in the Orange/Tangerine flavor. The liquid dietary supplement products may cause severe adverse reactions, including significant hair loss, muscle cramps, diarrhea, joint pain and fatigue.

The Total Body Formula products are sold in eight-ounce and 32-ounce plastic bottles. The Total Body Mega Formula is sold in 32-ounce plastic bottles. Both products are distributed by Total Body Essential Nutrition of Atlanta. The company is the sole distributor of the products and has voluntarily recalled Total Body Formula in the flavors of Tropical Orange and Peach Nectar and Total Body Mega Formula in Orange/Tangerine flavor.

On May  1, 2008,  The U.S. Food and Drug Administration’s final analysis of certain flavors of "Total Body Formula" and "Total Body Mega Formula” has detected hazardous amounts of chromium.

FDA analysis of the products found high levels of chromium among other items. The samples contained up to 3,426 micrograms of chromium for the recommended serving (17 times the recommended intake). The recommended chromium intake for an adult ranges from 35 to 45 micrograms per day.

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A good friend of mine and fellow attorney Joey James has been addressing wrongs caused by Central United. That company  issued  cancer policies, and  as has been argued successfully in court, failed  to do what it promised to do in those policies.

Now,  and without  any fanfare, there is a pending State Court class action involving Central United in Alabama which Joey James is NOT a part of, and to him may make little or no sense to policyholders (depending on the facts, and for some it may make sense). There is  a fast approaching deadline.

Mr. James writes this on his blog, http://centralunitedlawsuit.blogspot.com/:

You may also reach him at: 1-877-882-0095 by phone, joey@bunchandjames.com by email.

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