There are few things about which I'm 100% sure about. Certain up there with death and taxes is this axiom: car insurance companies are going difficult to deal with in (almost) ever personal injury accident case. But accident lawyers have to be careful in assuming that insurance companies are a monolithic beast. Each insurance company is a little bit different, both for settlement and in preparing for and trying accident claims. Below is a list of insurance companies and my law firm's analysis of these companies and how to deal with them:

• State Farm
• Allstate
• Geico
• Nationwide
• MAIF
• Erie
• Liberty Mutual
• Ameriprise

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The best advice for propounding, answering and following up on interrogatory answer is the one thing that few lawyers do: put thought into them as to exactly how you are going to use them at trial.   We get so much advice as lawyers as to what we should do.  As a result, we make a lot of diving impossible catches but miss too many fly balls. 

Think about what you are trying to prove at trial.  Think about the questions that box in the defendant's lawyer (in one direction or the other).  Think about the hard questions that you would like to get answers to read to a jury.   Think about the case individually.  Then draft your interrogatories and demand answers that fairly and honestly answer the questions.

Focusing just on this is better than reading a thousand differnet article on drafting interrogatories.

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The best advice for propounding, answering and following up on interrogatory answer is the one thing that few lawyers do: put thought into them as to exactly how you are going to use them at trial.   We get so much advice as lawyers as to what we should do.  As a result, we make a lot of diving impossible catches but miss too many fly balls. 

Think about what you are trying to prove at trial.  Think about the questions that box in the defendant's lawyer (in one direction or the other).  Think about the hard questions that you would like to get answers to read to a jury.   Think about the case individually.  Then draft your interrogatories and demand answers that fairly and honestly answer the questions.

Focusing just on this is better than reading a thousand differnet articles on drafting interrogatories.

• Sample interrogatories to defendant
• Sample car accident interrogatories answers
• Contention interrogatories

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A great article from Michael Maggiano. Here's an excerpt - Michael is happy to send you the rest as long as 1)You are a Plaintiff's lawyer; and 2)You don't represent insurance companies. His email is listed below:

It was a warm mid-spring afternoon, some 15 years ago. I had just finished a personal injury trial and I was finally feeling the effects of the two-week trial. As I slowly packed up my message and story boards, medical charts and anatomical models, a well-known defense attorney and friend came up to me and asked me to do him a favor. He told me that he was just assigned to this courtroom to commence a personal injury case in which he was defending. He had observed my use of the storyboards, charts and models and complemented me on them. He then told me that he was here on a significant case and was surprised that his adversary had not considered using any visual aids. He asked if I would, as soon as possible, remove my gear so as not to give his adversary any thoughts on the subject. I thought at first he was joking but upon a second look at his expression, I knew he was dead serious. He then remarked to me that he is ever surprised on how few Plaintiff attorneys utilize communication tools to tell the story of their case to jurors in ways that make sense to them.

We trial lawyers prepare like crazy looking for the best experts, researching and reading all the relevant literature, rules, codes, standards, guides and regulations. We comb the universe of knowledge as we arm ourselves like warriors as we enter the arena. We fall in love with our new found skills, knowledge and command of the scientific, technical and medical jargon. By the time we enter the court room we suffer The Curse of Knowledge. We execute incredibly brilliant direct examinations of our experts and cross examination of the opposing hired witnesses. But then we lose the case. What happened? Didn’t they hear us? Sadly, they may have heard you but did not understand the message. The only persons who understood us were the lawyers, experts and perhaps the judge. We traveled through the case at Mach 2, high above the courtroom and beyond the comprehension of those who really matter - our jury.

We all suffer from the Curse of Knowledge

 

If you want to talk to the jurors you have to first stand in their shoes. To stand in their

 

shoes we need to first remove our shoes. To remove our shoes we must understand our

 

curse of knowledge. The medicine, the law and technology is easy for us because we have

 

learned and lived with it for a couple of years before we get to court. No body should know

 

your case better than you. But now, what do you do with the knowledge. How does it translate

 

to what is relevant to your jurors?

 

You now have to find out what the jurors want to know. What is in it for them that will

 

capture their interest and move them to your side of the room.

 

Q. WHAT IS IT THAT JURORS WANT TO KNOW.

 

For the rest of this article, contact: mmaggiano@maggianolaw.com.

   

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At my offices, we are investigating claims of injury allegedly linked to this birth control pill, call  us at 877-573-4526, or email us at markzamora.com, or mark@mzlawyer.com

 

Yasmin and Yaz are two types of birth control pills manufactured by Bayer Healthcare, and the generic, Ocella, is marketed and distributed by Barr Laboratories, Inc. Yasmin and Yaz contain the same estrogenic compound, ethinyl estradiol, that has been used in “The Pill” since the 1970s, but the progestin in Yasmin and Yaz is new. Yasmin and Yaz both contain drospirenone, a “fourth generation” progestin – no other birth control pills contain drospirenone, except for a recently approved generic version, Ocella.

 

 

Side Effects of Yaz/Yasmin Birth Control Pills

Yaz/Yasmin was approved by the Food and Drug Administration (FDA) in 2006 as an oral contraceptive, and was marketed by its manufacturer, Bayer. Once the drug hit the market, however, the FDA started to receive reports of side effects when taking Yaz/Yasmin, including:

• Deep Vein Thrombosis (DVT)
• Pulmonary Embolism (PE)
• Heart Arrhythmia
• Heart Attack/Myocardial Infarctions and
• Stroke and Transient Ischemic Attacks

What is in the pill:

Yaz/Yasmin contains a synthetic progestin called drospirenone, which some claim will raise blood potassium levels. Doing so may result in a dangerous condition known as hyperkalemia. Hyperkalemia can lead to life-threatening heart problems.

From the first quarter of 2004 through the third quarter of 2008, more than 40 reports of death among users of Yasmin and Yaz have been filed with FDA. These include numerous deaths with reported cardiac arrhythmia, cardiac arrest, intracardiac thrombus (blood clots in the heart), pulmonary embolism (blood clot in the lungs), and stroke in women under 50 years of age.

After ads were run on this pill, there were complaints. In an agreement with the FDA and attorneys general from 27 states, Bayer agreed to drop the misleading ads and run a new campaign to educate the public about Yaz/Yasmin’s health risks. Unfortunately, innocent women across the country have already been hurt by taking Yaz/Yasmin. To date, a number of lawsuits have been filed against Bayer, claiming that the drug company misled women and their doctors about the dangers of their birth control pill.

 

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From the AAJ:

 

EMERGENCY MEDICARE SET ASIDE INFORMATION

Dear Colleague:

       In cases involving Medicare beneficiaries, attorneys for both the plaintiff and defendant are required to report certain information to the Centers for Medicare and Medicaid Services (CMS).  In addition, any case settlement or judgment must reimburse Medicare where the Trust Fund has made conditional payments for medical costs.  Under the Medicare Secondary Payer Act, attorneys have been settling cases involving liability claims without completing a Medicare Set Aside (MSAs) to account for future medical costs.  However, attorneys representing claimants in workers' compensation cases have been preparing MSAs on a case-by-case basis.

       It has come to our attention that some defense firms and insurance providers are now claiming that CMS requires MSAs in liability cases pursuant to Section 111 reporting requirements included in the Medicare, Medicaid & SCHIP Act of 2007 (MMSEA), Public Law No. 110-173.  This is false.  Section 111 contains reporting requirements for responsible reporting entities(1)  (RREs) only.  Section 111 does not impact or change the requirements for plaintiffs' attorneys.

       Moreover, statements from CMS, and other federal entities, make clear that the agency does not require set-asides for liability claims.  Since the MMSEA's passage, CMS has held several Town Hall teleconferences to discuss the Section 111 requirements.  During the March 24, 2009 call, Barbara Wright, CMS' Acting Director of the Division of Medicare Debt Management, made several statements reiterating that Section 111 has no impact on liability MSAs.(2)   For example:

• In response to a question as to whether liability set-asides will be required under Section 111, she said "the point is the set-aside process is totally separate from the Section 111 reporting process.  As we've said in more than one call we don't anticipate changing our routine recovery process."  (Transcript, pg. 24)
   
• When explaining that worker's compensation agreements use a formal review process which makes set-asides recommended, she said that was in contrast to liability agreements.  Liability "does not have the same formal review process although our regional offices will consider review of proposed liability set-aside amounts depending on their particular work load and whether or not they believe significant dollars are at issue." 
  (Transcript, pg. 24).

       In addition, CMS also has released several Alerts explaining Section 111, which do not indicate any intent to require MSAs for liability claims.  For example:

• "Unless you are a business entity which qualifies as [a required reporting entity (RRE)] for purposes of Section 111, you do not need to initiate any specific actions in connection with Section 111."  (CMS Alert, 2/23/09).(3)
   
• "The new Section 111 requirements do not change or eliminate any existing obligations under the MSP statutory provisions or regulations."  (CMS Alert, 2/23/09).

       Moreover, the Congressional Research Service (CRS) provided Congress with an "objective and non-partisan analysis" analysis of the MMSEA.  As there was no legislative history regarding the bill, the CRS research report is the most reliable analysis of the MMSEA, including the Section 111 reporting requirements.

       CRS' analysis of the Section 111 reiterates that it is a reporting requirement, and makes no mention of the need for set-asides in liability cases.  The Section 111 analysis states, in part:

This provision requires an insurer or third-party administrator for a group health plan (and in the case of a group health plan that is self-insured and self-administered, a plan administrator or fiduciary) to (1) secure from the plan sponsor and participants information required by the Secretary for the purpose of identifying situations where the group health plan is or has been a primary plan to Medicare, and (2) submit information specified by the Secretary.  If an insurer or third-party administrator for a group health plan fails to comply, then a $1,000 per day civil monetary penalty will be imposed for each individual for which information should have been submitted.(4)

If CRS believed that the legislative language implies any Congressional endorsement of liability set-asides, it would have been included in this analysis.

       We hope this information will be useful in your settlement negotiations. 

 

 

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My friends Joe Fried, Buck Rogers and Mike Goldberg have an Atlanta, GA based law firm that litigates trucking cases. They get results for consumers. They have just published the 2nd edition of their excellent treatise, the Motor Carrier Book. 

 

I spoke with Joe this week, and there are a limited number of free books he has to send to you, provided you only handle injury cases and don't defend insurance companies. I've highlighted several of the chapters. 

If you'd like a copy, email Joe Fried: joe@frg-law.com 

 

 

Book includes:

• The Basics of Interstate Motor Carriers
  

• Theories of Liability
  

• Driver Qualifications
  

• Hours of Service Regulations
  

• Federal Motor Carrier Safety Regulations and
• Handling a Trucking Case
  

   

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The Illinois Trial Practice Weblog has a blog post last week suggesting a question to pose to experts: "What is your understanding of your role in this litigation?" 

I like this question. I’ve asked the more loaded “Why were you hired in this case?” and questions to that effect but I like the exact wording because it is a less loaded question. As Evan Schaeffer points out in his post, if you ask this question to 10 different experts, you are likely to get 10 different answers. 

Car accident lawyers who are putting up a treating doctor for deposition should remind the doctor when preparing him for this type of question that the doctor is there to talk about what happened to his patient. In auto accident cases where the plaintiffs’ doctors are typically treating doctors, the difference in the answers underscores a great advantage for plaintiffs’ accident lawyers: typically, our experts are doctors helping their patients as opposed to a hired gun offering opinions and making a great deal of money on a regular basis doing so.

Remember this is a deposition question.  It would be an awful question to ask at trial unless you got a great answer in deposition.

 

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The Illinois Trial Practice Weblog offers a tip on avoiding asked and answered objections in depositions: "The deposition has now gone on about an hour. Is there anything we've discussed so far that's refreshed your recollection as to whether there was one meeting or two?" There is a reason why on material questions lawyers often ask the same question more than once: we often get different answers.

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As information technology and the new economy continues to shrink the size of the world, I'm regretting not learning a foreign language. I'm reminded of this every time I take a deposition with an interpreter which is becoming a more frequent occurrence.  I wish I didn't need a translator, particularly for Spanish.  John Bratt's Baltimore Injury Lawyer Blog has two posts with tips on how to make the sometimes trying process of deposing a witness through an interpreter just a little bit easier. Click on "two posts" and "tips" above for the links to the Baltimore Injury Lawyer Blog entries handling interpreter depositions.

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One of the attorneys at our firm has prepared a  “practice tip” sheet for updating your client fee agreement.  Among other topics, Mark’s article incorporates the points addressed in NY Professional Ethics Committee Opinion (#739, July 7, 2008), which contains logic that I believe is instructive no matter what state(s) you practice in. 

Mark states: No matter how big the case, your retainer agreement is the most important document in the file.  If it hasn’t been revised in a while, its time to dust it off and make sure it reflects the changing nature of settlement.  Doing so will make your settlements run more smoothly and provide you with the tools and time needed to satisfy your obligations and ensure that the settlement ultimately does exactly what it needs to do for your client.”

 

See below:
Continue Reading...

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The Accident and Injury Lawyer Blog has a post on a issue that troubles many accident lawyers in our smaller to mid-sized case: how to explain to a jury the fact that the injury lawyer referred the client to a doctor. This post give some thoughts on the best way to handle the lawyer referral problem.

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We received an interesting motion to compel a few weeks ago. Defendant's medical malpractice lawyer is seeking a 2 hour interview from Plaintiff with Defendant's vocational rehabilitation expert. In his motion, the defense lawyer argued that because the vocational rehabilitation expert interviewed the Plaintiff, the Defendant is being put at a disadvantage.

The problem is that the Plaintiff has already been deposed. If the Defendant's lawyer had questions related to her disability, couldn't he have asked those questions in deposition? Our view is that the defendant's lawyer is essentially asking the Plaintiff to give a second deposition.

You can find our response to the Defendant's motion here in the event that you are ever faced with a similar issue.

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The National Law Journal published a story last month on what is increasingly becoming a battle with defendants' lawyer in Maryland and apparently nationally over the terms and conditions of defense medical exams.” Accident lawyers in Maryland are beginning to realize that allowing the plaintiff to submit to an IME is a bargaining chip to require examining doctors to comply with their obligations to produce their relevant financial information.

You can find the entire National Law Journal article here which includes a quote from me.

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When to Name Experts Choosing between being a plaintiffs’ lawyer or a defendants’ lawyer is bit like choosing whether to play offense or defense in football. Actually, it is really not like that at all. But one of the benefits of being a plaintiffs’ lawyer in medical malpractice and accident cases is that you can (1) largely dictate the pace and direction of the case, and (2) you can be fully prepared from the moment litigation commences.

Most lawyers completely squander this opportunity and they end up having to reload their gun in the middle of the gunfight when they could have put all of their bullets in the chamber from the beginning.

When we file a lawsuit in accident and malpractice cases, we serve the defendant with the Complaint, Interrogatories, Request for Admissions, Request for Production of Documents and Expert Designation at the same time we serve the Writ of Summons. It is one more hoop a lawyer has to jump through when commencing suit, but it helps you meet deadlines you will most certainly face down the road. The caveat to early designation of experts is to still put the deadline on your calendar and later check the designated experts to make sure you do not need additional experts for trial.

But to underscore the usefulness of naming experts from the beginning, do a Westlaw search for missed expert deadline cases. In only a few minutes, you will find hundreds of cases. I will bet you in 95% of these cases, the injury lawyer knew who his experts would be before filing suit but simply forgot to designate them before the deadline.

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U.S. Supreme Court Justice Antonin Scalia reportedly told lawyers at a dinner of the 7th Circuit Bar Association dinner earlier this month that when writing briefs and giving arguments, lawyers should "use words that would make people look at you funny if you were to use them at a cocktail party."

If you arguing to the United States Supreme Court,  by all means, bring your thesaurus and have at it, those folks are used to dealing in big words.   Otherwise, I think that you might want to consider the judge and the case before taking that advice. 

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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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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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For plaintiffs’ lawyers, the statute of limitations is a habitual pest. As easy as it usually is to avoid, it is the most common basis for legal malpractice actions against personal injury lawyers. A more common pain for most of us is the great case where the statute of limitations has passed before the client calls. Who has not gotten a call from a deserving client with a great case only to find that the statute of limitations has long since passed? While it shocks plaintiffs’ lawyers that someone would sit on their rights for so long, it happens all the time. Late Sunday evening as I was getting ready for Christmas with my family, I got an intake call from a woman whose 14 year old son, who died last year, had had cerebral palsy spastic quadriplegia. This is the definition of a catastrophic personal injury case. I wanted to ask her – but didn’t – the question that was burning in my mind: why did you wait so long to call?

The statute of limitations is considered harsh and inflexible, even by those enforcing it to the detriment of a deserving plaintiff. But if you get a case where the statute of limitations has seemingly passed, make sure that your case does not fall within one of the four exceptions that most jurisdictions have in some form or other, which can extend the statute of limitations.

The first, and the most litigated, is the discovery rule. Under the discovery rule, an action begins to accrue when the injury victim knew or reasonably should have known of the negligence and the harm that ensued. This exception also has exceptions in many jurisdictions by statutes of repose that often apply in products liability and medical malpractice cases.

The second “end run" around the statute of limitations is the continuation of events theory. This may apply in cases where there is a continuation of services, like a lawyer performing services over time for a client, or when the victim’s right depends upon the happening of an event in the future. In these cases, the statute may often be extended beyond the date of a given act of negligence. The third exception is when the culpable party fraudulently conceals knowledge of a cause of action. In this case, in many jurisdictions, the cause of action does not begin to accrue until the reasonable discovery of the fraud.

The final exception, which would have saved the cerebral palsy example above, even if the young man had not died, is when a person is under a disability. A disability is defined as minors (under 18 in most jurisdictions) and plaintiffs who are mentally incompetent. If you think the statute of limitations kills your case, it probably does. But first make sure you turn over the rocks of these exceptions.

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Trucking cases require - as most will tell you - different discovery than other cases.  Here is a thorough  Request for Production of  Documents  that you can use in full or in part:

Will a Defendant fight your request? Probably: 
 

1. Copy of defendant’s document retention policy.

COLLISION

2. Make/model/year of tractor/trailer involved in Collision.
3. Copies of any photo/video of scene.
4. Copies of any measurements of scene.
5. Copies of any statements by interviewed witnesses.
6. Copies of any investigation of Collision
7. Copies of any reconstruction of Collision.
8. Copies of any interview with driver
9. List of physical evidence removed from scene/vehicles/driver/personal possessions.
10. Copies of all documents related to the load being transported on the trailer at time of Collision
11. Copy of the Collision report sent to USDOT
12. Copy of contract/agreement with company who shipped or was to receive load on trailer at time of Collision.
13. All records of any investigation, evaluation or finding by Defendant, relating to whether the Collision was preventable or non-preventable from the standpoint of its driver.
14. All documents generated by the Defendant company’s incident review board and/or internal organization that reviews incidents of its drivers concerning the chargeability of the incident.
15. A copy of the post Collision drug/alcohol report on driver as required by 49 C.F.R. & 382.303 and all related documents by defendant driver following the incident.

POLICIES/PROCEDURES/MANUALS

16. Copies of any policy, procedure, manuals, outlines, directives, memorandum or other prepared material dealing with the following:

            -Discovery responses propounded by adverse parties

            -Document retention

            -Information technology

            -Personnel/driver qualification

            -Driver training

            -Loss prevention

            -Dispatching

            -Compliance with FMCSR

            -Fleet maintenance

            -Collision/Collision investigation

            -Driver discipline/termination

            -Driver log acquisition and verification

            -Black box (ECM/DDEC/Etc.)placed on Defendants vehicles

            -Satellite tracking device (e.g. Qualcom) placed on Defendants     vehicles

            -Risk management

17. The parts and service manual for the tractor involved in the incident.
18. All policies and procedure manuals, memoranda or directives, standard operating procedures, training manuals or materials or videos, driver manuals, handbooks, presentations, employee manuals, handbooks or brochures and supplements and updates thereto used or prepared by or on behalf of the Defendant during the last 5 years.
19. All agenda and minutes of safety department meetings, along with the agenda and sign in sheets, for a time period of five years prior to the subject Collision to the present date
20. Copy of any policies, directives, procedures or similar material which in any way sets out, describes, or explains the policy or the Defendant with regard to the review of driver logs.
21. Copy of any policies, directives, procedures or similar material which in any way sets out, describes, or explains the policy or the Defendant with regard to the review of vehicle position histories from any satellite tracking device in Defendant’s tractors.
22. All contracts, policies, manuals, directions, instructions, stored/retrievable information, and procedures in the possession or control of the Defendant regarding the Qualcom System or similar satellite tracking system used by the Defendant on its tractors.
23. All policies, instructions, manuals, directions and procedures regarding dispatchers of the Defendant, including all training manuals and instructions used in training dispatchers

(company name)

24. Organizational chart showing all departments/divisions of Defendant
25. Organizational chart of Defendant’s safety department.
26. Organizational chart of Defendant’s maintenance department.
27. Organizational chart of Defendant’s log compliance/FMCSR compliance department.
28. Organizational chart of Defendant’s driver qualification/training department.
29. Organizational chart of Defendant’s dispatching department.
30. Organizational chart of Defendant’s information technology department.
31. Organizational chart of Defendant’s human resources department.
32. Copies of budget for last 5 years for safety training, driver training, fleet maintenance, advertisement for drivers, compliance with FMCSR, and dispatching.
33. List of log auditors name/address employed by Defendant within last 5 years.
34. Copies of instructions, manuals, notebooks or other prepared material dealing with the Defendant’s software system for payroll, maintenance, driver qualification and compliance with FMCSR.
35. Copies of data retention and back-up policies on all computer systems.
36. Copies of company policy on driver discipline for violation of FMCSR.
37. Copy of minimum qualifications for driver.
38. Copy of written policy on fleet repair and maintenance.
39. Copy of written policy on internal investigation and review of Collisions.
40. Copies of reportable Collisions and safety rating of defendant as given/assigned by the FMCSR for last 10 years.
41. Copies of any unsatisfactory safety rating by FMCSR.
42. Copies of advertisements utilized by the Defendant within last 5 years to solicit drivers in any state of the United States and any foreign country.
43. Copies of all liability insurance policies (including coverage pages) of the Defendant applicable to this Collision.
44. Full annual reports and audited financial statements of Defendant for the last 5 years, and all quarterly or interim financial statements for reports covering the period subsequent thereto.

DEFENDANT’S (year/model vehicle) INVOLVED IN COLLISION

45. Copies of any and all data, printouts, documents, charts, graphs or like material in possession of the defendant that was downloaded from any data gathering device (electronic control module) on Defendant’s tractor/trailer at the time of this Collision along with manuals/instructions on how to interpret the information.
46. Copies of any and all maintenance records on the Defendant’s tractor and trailer involved in this Collision for the last 5 years.
47. Copies of the fuel history of the tractor belonging to Defendant involved in this Collision for the last 5 years.
48. All documents or written material of every nature within the possession and/or control of the Defendant which contain information as to all drivers who have driven the tractor involved in this case in the last 5 years.
49. The parts and service manual for the tractor involved in the incident that is the subject of this litigation.
50. All vehicle condition reports and repair orders on the tractor involved in the Collision which is the subject of this action for the last 5 years before the Collision.
51. All documents within the possession and/or control of the defendant which contain information as to any Collision involving the defendant allegedly caused by mechanical failure of a tractor or trailer
52. All documents within the possession and/or control of the defendant which contain information of any on-board recording monitor, trip monitor, trip recorder, trip master, or device known by any other name which records information concerning the operation of the truck for the 30 days before the incident through the date of the incident.

DEFENDANT’S DRIVER, (name) , INVOLVED IN COLLISION

53. All driver logs within possession of defendant regardless of format be it paper, electronic or otherwise.
54. All driver vehicle inspections within possession of defendant regardless of format be it paper, electronic or otherwise.
55. With regard to the driver of the Defendants vehicle involved in this Collision produce copies of the following:

            -Employment history

            -Driving record

            -Copies of any and all alcohol and/or drug test administered on     the Defendant’s driver after collision which is subject to this     Cause of Action

            -Driver school records/CDL training records

            -Payroll records

            -Traffic violations last 5 years

            -Loan records

            -Discipline record with the Defendant Company

            -Collisions within last 5 years

            -Past employment history

            -Fuel records for last 5 years

            -Comdata fuel management records on driver for last 5 years

            -Credit card purchase records for last 5 years

            -Weight tickets for last 5 years

            -Dispatch records for last 5 years

            -Alcohol/drug test results for last 5 years

            -Employee evaluations for last 5 years

            -CDL records

            -Date/time/origin/destination of driver loads for last 5 years

OTHER SIMILAR CASES/CLAIMS

56. Copies of all files, data, documents, etc., related to any personal injury claimant where no suit was brought against Defendant within last 5 years.
57. Copies of all personal injury suits brought against defendant within last 5 years.
58. Caption (state/court/case #) of any personal injury lawsuit brought against Defendant within last 5 years.
59. Name/address of all Plaintiffs’ attorneys in personal injury lawsuits brought against Defendant’s within last 5 years.

ONBOARD SATELLITE TRACKING DEVICE

60. Copies of any and all data, printouts, documents, charts, graphs, or like material which in any way shows, demonstrates, catalogs, defines and/or alludes to any information from any satellite tracking device (e.g. Qualcom) located on the Defendants tractor/trailer involved in this Collision for the last year specifically including but not limited to the following:

            -Vehicle position histories/data

            -Driver contact/check calls

            -Messages to/from driver

            -Vehicle maintenance data/messages

            -Load information

            -Location histories

FMCSR

61. Any “out of service” stickers ever issued to the defendant from any governmental or regulatory agency of the United States or any state.
62. A copy of the periodic inspection report as required by 49 C.F.R. & 396.21
63. Any documents containing information as to any investigative inquires concerning the defendant driver as required by 49 C.R.F. & 391.23.
64. All safety management controls (as defined by 49 C.R.F. & 385.3) which the Defendant had in effect during 2004.
65. All Safety ratings (as defined by 49 C.R.F. Section 385.11) issued to the Defendant by any state or federal government agency for the last 5 years.
66. All notifications of Safety Ratings (as referenced in 49 C.R.F Section 385.11) provided to defendant by any state or federal governmental agency for the last 5 years.
67. All requests submitted by the Defendant for a change in safety rating pursuant to 49 C.F.R. Section 385.17 for the last 5 years.
68. Any and all records required to be kept pursuant to 49 C.F.R. 396.3, for the tractor or trailer operated by the Defendant’s driver at the time of this Collision.
69. Copies of all documents in the possession or control of the defendant regarding the use of an unqualified driver as set forth in the Federal Motor Carrier Safety Regulations.
70. Copies of all documents, records, or written materials of every nature within the possession or control of the Defendant which contain information concerning any driver being fined, penalized, or assessed any amount of money for drivers’ logs which do not comply with the Federal Motor Carrier Safety Regulations.
71. Copies of all DOT inspections and citations in possession or control of the Defendant where it was found that driver’s logs did not comply with the FMCSR.
72. Copies of any and all notice of claims, inspections, reports, compliance reviews, investigations, or like matters conducted on the Defendant by the FMCSR within the last 5 years.
73. Copies of all USDOT registers (history or Collisions required to be kept by FMCSR) of the Defendant for the last 5 years [§390.15(b) FMCSR].

DRIVER (name) GENERAL TRAINING AND SCHOOL

74. Provide all documents in possession or control of the defendant regarding driver turnover and driver retention.
75. Provide all documents in possession or control of the defendant regarding Collisions involving student trainees.
76. Provide al documents in possession or control of the defendant regarding Collision frequency of its drivers.
77. Provide all documents in possession or control of the defendant regarding trainee drivers hired by the Defendant.
78. Provide all documents in possession or control of the defendant regarding drivers hiring statistics, graphs, and profitability analyses.
79. Provide all documents in possession or control of the defendant regarding hiring of convicted felons.
80. Provide all documents in the possession or control of the defendant regarding hiring drivers who do not speak English.
81. Provide all documents in the possession or control of the defendant regarding advertising expenditures for hiring of drivers and all statistics graphs and profitability analyses regarding advertising expenditures of hiring of drivers.
82. All documents in possession or control of the defendant regarding the annual income expenditures, net profit, and profitability analyses of any driver training school which the Defendant had a financial interest.
83. All documents in the possession and control of the Defendant regarding revenues paid to any driver training school in which the Defendant had a financial interest in the last 5 years. 
    

MISCELLANEOUS

84. All physical, documentary, electronic and photographic/video evidence in possession of Defendant related to the Cause of Action.
85. Copies of any and all notices of claims, inspections, reports, compliance reviews, investigations, or like matters conducted on the Defendant by the SEC within the last 5 years.
86. Copies of any and all document, writing, chart, graph or similar material utilized by the Defendant to set times for the pickups, travel and/or delivering of loads (run time transit chart).
87. Any and all documents, writings, or exhibits of any kind in the possession, custody or control of the Defendant, the Defendant’s attorney, or anyone else listed in or used in the preparation of Defendant’s Answers to Interrogatories.
88. Any and all correspondence, reports, charts, photographs, drawings, videotapes, brochures, manual, memoranda, notes or other documents, materials or physical evidence of any kind which relate to any claim or defense in the action.
89. Any and all correspondence, reports, charts, photographs, videotapes, brochures, manuals, memoranda or other documents, materials or physical evidence of any kind received from, provided to or generated by any expert witness you expect to call as a witness at the trial of this case.
90. Any correspondence, reports, charts, photographs, drawings, videotapes, brochures, manual, memoranda, notes or other documents, materials or physical evidence of any kind relied upon by any expert witness in forming an opinion in this case whom Defendant expects to call as a witness at trial.
91. A current Curriculum Vitae of any expert witness you intend to use as a witness at the trial of this case.
92. Any documents, materials or physical evidence which Defendant contends are relevant or which it intends to introduce at the trial of this action.
93. All course materials used by Defendant, in any safe driving or defensive driving or training courses.
94. All internal audits, safety audits, reports of safety audits or reviews of defendants including those prepared by or for insurance companies for the last 5 years.
95. All correspondence between defendant and its insurance carriers concerning safety reports, reviews or audits or safety ratings for the last 5 years.
96. The claims log and/or Collision log pages from the date of the Collision.
97. Copies of all documents, materials, and records in the possession or control f the Defendant which in any manner relate to discrepancies between any drivers daily log and the vehicle position history of any driver.
98. All documents and materials which set forth the job description and duties of log auditors and dispatchers of the Defendant Company.
99. All documents and materials, electronic or otherwise, which relate in any manner to the number of the Defendant’s drivers or trucks in which dispatchers are in any manner responsible for.
100. All documents and materials, electronic or otherwise, which relate in any manner to the number of the Defendant’s drivers or trucks in which dispatchers are in any manner responsible for.
101. All documents and materials, electronic or otherwise, which relate in any manner to bonuses received by dispatchers, drivers, and all employees of the Defendant prior to the date of this Cause of Action.
102. All documents, materials, computer programs, directions, manuals, electronic data and procedures used to calculate run time (calculation of time necessary to deliver a shipment) in the possession or control of the Defendant.
103. Copies of all videos and training aids used by the Defendant in training their drivers regarding the consequences of driver fatigue while operating a truck.
104. List of names, addresses, and telephone numbers of other Defendant drivers who have been terminated within the last 5 years.
105. All documents or written material of every nature within the possession and/or control of the defendant which contains information as to all drivers who have driven the tractor involve in this case in the last 5 years.

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     Too many personal injury lawyers view properly preparing their clients for their depositions as an unskilled part of their work. In terms of both future settlement opportunities and likelihood of success at trial, your client’s deposition is the single biggest event. This blog post is meant to give some thoughts on thorough preparation of clients for their depositions. I’m going to save the obvious, ‘listen to the question’, ‘answer the question posed’, ‘don’t guess’, etc., type of advice. Instead, I’m going to offer some random thoughts on what I believe personal injury lawyers need to place more focus on in getting their clients ready for deposition

1. Remember the goals of the deposition. These are twofold: (1) do no harm, and (2) make a good impression on the defense lawyer. The most important goal is clearly to make sure your client will not give testimony that will render the client ineffective at trial. The secondary, but also important goal, is to make a quality impression. Many defense personal attorneys believe that this presents a real opportunity to better appreciate who the Plaintiff really is and whether the Plaintiff will make a quality impression in front of the jury as a person entitled to significant compensation for their injuries. If the injury victim does not appear honest and sympathetic at his/her deposition, most defense lawyers realize the same will hold true at trial. Rarely does a client present a better impression at trial. Conversely, if the client is good, honest and sympathetic, the case often becomes a lawsuit, because computer programs (like Colossus), which are used to calculate damages, cannot measure real human suffering. Good defense lawyers know that juries can and do appreciate human suffering, and they include this in the evaluation to the insurance adjuster.

2. Articulate the goals. Explain the goals of the deposition to your client and underscore the importance of the deposition to them. Certainly, it might make the client more nervous, and I’ll touch in on that in a moment. But clients should be made to feel that they have some control over their case, and those who do will take the process seriously.

3. The defense lawyer is not your friend. Remind your client of this. Clients come in to depositions feeling nervous, expecting the defense lawyer to be a monster. When they find the lawyer is a decent man/woman, they often overreact and a lovefest can ensue. You make the problem worse when you are genuinely friends with opposing counsel, and start asking how little Molly’s softball game went the week before.

4. Conversely, while remembering the defense lawyer is not on the client’s side, the client should also know that it is important to be courteous to the insurance company's accident attorney or medical malpractice defense lawyer. Besides their mothers’ motto that it is always a good time for good manners, it is also important because the insurance company's lawyer knows that juries award compensation to injury victims who are good people who are hurt, not angry people who are bitter about their injuries.

5. Tell you clients it is okay to be nervous. Remind them that the defense lawyers (and jurors) see past how nervous the client is, and past all of the distractions, and do get a decent sense of what happened. Tell them not to fight it. (Paradoxically, of course, this relaxes the client anyway.)

6. Equivocate. Tell you client to skip words like “never” and “always.” Make sure the client avoids absolutes when there are really not absolutes. Absolutes just box in the client at trial.

     These are my thoughts. Click on the links if you want to see sample depositions, or other sample discovery.

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Why take a deposition?  To find out what the witness is going to say?  Sure.  But it is just as important to find out what the witness is not going to say, particularly with a witness that is likely to be adverse.  Accordingly, in an auto accident case, you need to establish what the eyewitness saw and heard, what they did not see or hear, and what they think they saw or heard but do not have the factual predicate to draw the conclusions they have drawn.

In auto accident cases, the deposition tactics often revolve around the issue of speed.  In Maryland, Virginia, the District of Columbia, Alabama, and North Carolina, where the draconian contributory negligence laws remain on the books (we are fighting in the legislature this year for comparative negligence in Maryland), speed is always the last resort of defense attorneys who (1) have nothing to argue, or (2) want to argue everything.

If you have an adverse witness on the issue of speed, you obviously have to ask how fast the witness thinks your client was driving and find out what foundation they have for their estimation of speed.  Make sure you conduct complete speed and distance questioning as well.  By complete, I mean full questioning as to how long the witness observed the vehicles traveling, how long it took, and what was the distance covered.  Ask the question in miles, yards, feet, car lengths, etc.  It is rare that anyone other than a well trained police officer can answer consistently time and distance calculations in the first place, much less when they are required to make the same distance measurements using different standards.  If an adverse fact witness offers conflicting testimony as to the speed, it may negate the impact of his/her testimony or give the personal injury attorney grounds to exclude the witness' testimony at trial. 

To see sample depositions in auto accident and truck accident cases, click here.

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Over the years we have crafted/borrowed from/added to the spoliation letter my offices sends out in cases involving  tractor trailers. Here you go:


Dear Mr. XXX:

    As you may be aware, my law firm represents XXXXXXXX as a result of personal injuries resulting from an accident which occurred on XXX in XXXX.  We specifically request that the following evidence be maintained and preserved and not be destroyed, modified, altered, repaired, or changed in any matter:

    1.    The tractor and trailer involved in this accident.
   
    2.    Bills of lading for any shipments transported.

    3.    Any oversized permits or other applicable permits or licenses covering the vehicle or load on the day of the accident.

    4.    The daily logs for the day of the accident and the eight day period preceding the accident.

    5.    The daily inspection reports for the day of the accident and the eight day period preceding the accident.

    6.    Daily inspection reports for the tractor and trailer involved in this accident for the day of the accident and the eight day period preceding this accident. 





    7.    Maintenance, inspection, and repair records or work orders on the tractor and the trailer for the day of the accident and for the six month period preceding the accident.

    8.    Annual inspection report for the tractor and trailer covering the date of the accident.

    9.    The complete driver’s qualification file, including but not limited to:
           
        a.    application for employment
        b.     CDL license
        c.    driver’s certification of prior traffic violations
        d.    driver’s certification of prior accidents
        e.    driver’s employment history
        f.    inquiry into driver’s employment history
        g.    pre-employment MVR
        h.    annual MVR
        i.    annual review of driver history
        j.    certification of road test
        k.    medical examiner’s certificate
        l.    drug testing records
        m.    HAZMAT or other training documents

    10.    Photographs of the vehicles involved in this accident or the accident scene.

    11.    Any post-accident alcohol and drug testing results

    12.    Any lease contracts or agreements covering the tractor or trailer involved in this accident.

    13.    Any interchange agreements regarding the tractor or trailer involved in this accident.

    14.    Any data or printout from on-board recording devices, including but not limited to ECM (electronic control module), any on-board computer, tachograph, trip monitor, trip recorder, trip master, or other recording device for the day of the accident and the six month period preceding the accident.

    15.    Any post-accident maintenance, inspection, or repair records or invoices in regard to the tractor and trailer.

    16.    Any weight tickets, fuel receipts, hotel bills, or other records of expenses regarding the driver or the tractor or trailer involved in the collision for the day of the accident and the eight day period preceding the accident.


    17.     Any trip reports or dispatch records regarding the driver or the tractor or trailer involved in this collision for the day of the accident and the eight day period preceding this accident.

    18.    Any e-mails, electronic messages, letters, memos, or other documents concerning this accident. 

    19.    The accident register maintained by the motor carrier as required by federal law for the one year period preceding this accident.

    20.    Any drivers manuals, guidelines, rules or regulations given to drivers. 

    21.    Any reports, memos, notes, logs or other documents evidencing complaints about the driver. 

    22.    Any DOT or PSC reports, memos, notes or correspondence concerning Chip P. Bledsoe or the tractor or trailer involved in this accident.

    In regard to the tractor and trailer involved in this incident, we would like to set up a mutually convenient time for our expert to inspect, examine, and conduct tests on the unit.  We specifically request that you make no repairs or adjustments to the tractor or trailer until this inspection is completed.  I must have a response within the next ten (10) days. 

                           

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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.

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Every now and then, a book comes along that is better than good and just spot on terrific. Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability is one of them. I was hearing good things about this book and saw this plug by David Ball:

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Last Summer at the ATLA Convention I met Adam Rosen of JuryTest. Adam  has an interesting business in that he conducts on-line focus groups. I was giving a presentation on in-house focus groups a month later and had a case coming up for mediation, so Adam offered to give me a sample focus group on the same case if I shared the information from our live focus group for him to compare. We had a case with strong damages, but we were concerned about liability. The results were rather interesting. The ‘live’ and ‘online’ focus groups tracked each other much closer than I thought they would. Here are my thoughts regarding on-line focus groups:

Pros

• Fast and Easy to Set up – It took about 5–10 minutes to set up the presentation. I e-mailed Adam two or three pictures and one or two scanned pages of medical records. I then gave a 3–5 minute presentation on the phone.  That’s all it took.
• Fast Results – JuryTest can get the results within 24 hours of when you give them the information.
• Tremendous Breakdown of Results – The results are online in a spreadsheet / pie chart. You can very easily sort by age, income, gender or other demographic considerations. I had never been a big fan of demographics until I saw the breakdown on our case. We had a nearly unanimous consensus on liability except for men over 40 years old making over $50,000 a year, who were only 50/50 for us. Good stuff to know before picking a jury (especially in South Carolina with our limited voir dire).
• Inexpensive – The cost is scaleable based on the number of  jurors you have, but I think you can get 8–12 jurors for about $500. Additional jurors don’t cost that much extra. Call Adam for pricing, I don’t want to put words in his mouth, but it is a very modest fee.

Continue Reading...

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Imagine being able to sit down with one of the best lawyers in the state for 10 minutes of advice. Now multiply that by 100. That’s what the Texas Young Lawyer’s Association did. They took a video production crew around the state for several months, videotaping 10 minute presentations from some of the best lawyers in Texas. Robert Ambrogi describes the project well:

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You once heard that requests for admission are a severely
underutilized tool.  So you tried using them and filed detailed requests in a
case.  Yet you accomplished absolutely nothing because the defendant's
attorney categorically denied virtually every request for admission.  

There are two good tactics to consider when faced with this
typical obstruction.  The first is to propound an alternative interrogatory
upon the defendant which asks the defendant's lawyer to set forth all facts
and evidence upon which the defendant intends to rely upon at trial to
support the defense lawyer's denial of the request for admission.   This
type of interrogatory helps to put defendant's case into a tighter box.
This box tends to be even tighter if you are propounding your discovery at
the beginning of the case.  Most lawyers begin to look creatively at their
case just before trial. Forcing the defendant to take early positions gives you a competitive advantage.

The second tactic to use when faced with nonsensical denials is
to do absolutely nothing at all.  At trial, read the request for
admissions to the jury. The most typical denial used is defendant's denial that the hospital bills and treatment were causally related to the accident. The message the jury gets loud and clear is that Mr./Ms. Defense Counsel is acting very reasonable now but defendant’s lawyers have fought the injured plaintiff at every single turn on every single issue, regardless of the merits of that issue.  This gives the defense attorney an edge in the most critical fight between lawyers in a jury trial: the battle for credibility.

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