Trial Lawyer Resource Center

There is no question that, all other things being equal, live witnesses are more interesting than videotaped depositions. It is simply more interesting to connect with an actual human being than it is with a figure on a videotape. But all things are not always equal. Often, it makes more sense to offer witnesses by videotape in personal injury cases.  This blog post offers a few things to consider in the decision making process that may weigh in favor of bringing your expert by videotape.

Some expert witnesses make a better appearance on a video than they do testifying live at trial. This is true for a lot of reasons. The doctor might seem more “independent” in his office with his lab coat on than coming to trial to testify on behalf of the client. Also, the truth is that some witnesses are unattractive in mannerism or appearance and are more palatable on video where some unattractive qualities can be muted somewhat.

Some experts also charge so much money for live testimony that it makes it untenable to bring that expert live given the size of the case. If you have an auto accident case that you believe is worth less than $50,000, it becomes very difficult to justify to the client paying an expert $8,000 to testify live at trial. Even if the lawyer is fronting the money for the experts, it comes out of the client’s pocket at the end of the day (assuming the case is successful).

In some trials where scheduling of witnesses is an issue and you have a judge who is going to demand to move the trial along, it is also sometimes helpful to have a videotape because of the flexibility it provides in terms of plugging in the right witnesses at the right time during the trial. This is particularly true of those witnesses where you need their testimony in evidence, but the issues to which they speak are not particularly issues of great contention.

Finally, if you think the trial testimony is going to be contentious in terms of what testimony will be allowed and you fear this dispute may look unfavorably on you or your client, a videotaped deposition in a viable solution. This way, you can air your disputes with the defense lawyer, and either edit the tape accordingly, or, as is more customary in the real world, simply fast forward though the objections.

Again, all things being equal, a live witness is a better witness. But these choices should be made in each individual case. Sometimes, the best and easiest thing for your client is to videotape the deposition of one or all of your expert witnesses.

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LOSS OF CONSORTIUM

Loss of consortium is finally recognized in most jurisdictions. In lay terms, loss of consortium or “trauma to the marital relationship” recognizes the fact that due to injury, a spouse may not be capable of performing those tasks as pre-morbidly performed.

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LIFE CARE PLAN

     Spinal cord injury cases necessitate the retention of a life care planner. This specialist is taxed with the obligation to coordinate with all of the plaintiff’s treating physicians in order a clear medically probable future care plan is developed.

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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.

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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.

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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.

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I’m still getting caught up on posting notes from previous seminars. At the Southern Trial Lawyers Fall Retreat, Richard Jones a lawyer from Atlanta who specializes in inadequate security cases gave us an update on these cases which have become immeasurably harder to try in the age of ‘tort reform’.

The problem you have to contend with in inadequate security cases is that the management had actual knowledge of criminal activity on their premsies and did nothing. However, regardless of policy management never makes reports of any criminal complaints in the area. So what do you do?

Beat the bushes.  Go up and down the hallways and talk to the people. Talk to the people pre-suit. You have permission to be there (from client/tenant). Get the police reports for the apartment complex. Talk to the police officers. Talk to the victims. But it’s important to get out there fast before the witnesses move away or otherwise disappear.

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Truck accident cases are typically more complex than the average automobile accident case.   Practically, truck accident cases are more difficult to handle because there is typically more at stake.  A recent Jury Verdict Research nationwide study looked at truck accidents from 1996 to 2005 and found that the average compensation award of these verdicts was $90,000.  In contrast, the average personal injury verdict was $38,461.  Because there is more at stake, and because truck accident cases are typically handled by outside counsel who bill by the hour, a lawyer handling a truck accident case should expect to put in more work than they would in the average personal injury case. 
 
The upshot to handling truck accident cases as opposed to other motor vehicle accident cases is that if there is a liability dispute, there is a wealth of data that may be available to assist you in making your case.  It is critical that this evidence be preserved.  In a letter to the trucking company, plaintiff's lawyer should make broad requests to preserve all documents, equipment, photographs, data and other items related to the accident. The truck accident lawyer should consider, if applicable, specifically requesting:

1. Black box data;
2. Truck driver's personnel file and driving history;
3. All statements obtained from investigation of the truck accident;
4. The truck driver's log for the last two years (which must be kept per 49 C.F.R. 395.8 and 395.15);
5. The truck driver's qualification file as required by 49 C.F.R. 391-51;
6. GPS and/or other tracking data; and
7. The truck's maintenance and repair history.
     
With respect to item #4, plaintiff's attorney should send a letter immediately to the trucking company requesting that they retain the log books.   The attorney's letter should reference 49 CFR 395.8(k), which specifically addresses the retention of a driver’s record of duty status.  The letter should also specifically request all the operational documents associated with each trip the truck driver took for at least three years before the truck accident (although the CFRs only require 6 months).
   
If the trucking company fails to produce the driver's logs, you should be able to get a charge of a spoliation instruction if the case goes to trial.

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