Trial Lawyer Resource Center

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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I wrote a page today advising injury victims on the question of how long their auto accident claim will take to settle.   For lawyers, the best advice in terms of giving advise is to underpromise and overdeliver.  Like construction, things typically, take longer than you anticipate or hope that they will.  How do you predict how long the Plaintiff will receive treatment or who long the doctor will take to provide a medical opinion you need in your demand package?  

Moreover, if the client has a multitude of health care providers, you can bet that at least one is going to be slow to respond. 

The "take home message" is twofold.  First, set expections low in terms of how long things will take, offering an expected range within a 98% confidence interval as opposed to an estimated date.  Second, make sure you are doing everything you reasonably can to push the accident claim forward (without cutting any meaningful corners).

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Sometimes in life, we can make the diving catches but we miss the soft ground balls hit right at us. 

If you are reading this, chances want tools to make yourself a better lawyer.  And you are doing creative things to make yourself better.  But if you are not on your local listserv, you are missing one of those easy ground balls. Because I cannot think of a single personal injury lawyer who would not benefit by joining their state trial lawyer listserv.

Listserves are essentially e-mail groups catering to a specific topic or community. A host will maintain the registry of participants by determining what members to accept and decline, and will sometimes assist in regulating content to keep the discussions to fundamental purpose of the list. 

Many listserves useful to plaintiffs’ lawyers are those maintained by the American Association for Justice (AAJ, formerly the Association of Trial Lawyers of America, ATLA) and various state trial lawyers associations. AAJ has over 30 listserves based on practice area and member type (for example, auto accident,  products liability, medical malpractice, new lawyers, paralegal members), and more listserves based on “litigation groups” featuring current litigation topics (for example gadolinium, pain pumps, Yaz, jury bias). State trial lawyers associations have their own topics that cater to the needs of their members. In order to access these listserves, you must be a member of the parent organization and, in some cases, a member of a particular section or group within the organization.  Our listerv in Maryland is absolutely fantastic.  There is no a single lawyer who participates that does not learn something. 

 

There are typically policies or “rules of conduct” governing a user’s right to participate in the listserve discussions. Frequently they include rules that topics must be relevant to the listserve’s purpose, political discussions are forbidden, and listserve discussions are private and cannot be shared with non-members. 

 

Messages can typically be received in varying formats, including individual messages, a daily digest (one message each day including all messages sent that day) or a daily index (one message each day indicating the subjects of the day’s postings). Listserve archives are typically searchable.  

 

Some people get turned off by lawyers on their listserv because (1) lawyers who are writing to hear themselves talk and (2) subject matter that is nonsensical/irrelevant or otherwise just plain silly.  This is a pandemic listserv problem.  My advice?  Just deal with it.  Because it is worth it.

 

These listserves allow members to provide information and ask questions to a group of like-minded attorneys in a particular area. It is an invaluable tool for advice and guidance. There is not a single lawyer in the country handling personal injury cases who would not be served by being on its state's trial lawyer association listserv.

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Yasmin/Yaz is the latest drug receiving scrunity from product liability lawyers.  Yasmin/Yaz have been associated with deep vein thrombosis (blood clots), pulmonary embolism, strokes, heart attacks and, as a result of these health consequences, death. Yasmin/Yaz lawsuits allege product liability, negligence and failure to warn claims against Bayer. There has been in recent months a small flurry of new medical articles have come out in the past week regarding Yasmin and Yaz. Below is a summary of what is out there. Sneak preview: it is not good news for Yaz/Yasmin or its manufacturer Bayer.

Vlieg, et al. The venous thrombotic risk of oral contraceptives, effects of oestrogen dose and progestogen type: results of the MEGA case-control study, BMJ 2009;339:b2921.

• Concluded that oral birth control bills increase the risk for venous thrombosis by about five times (this is not new news). But the study also found that drospirenone-based oral contraceptives had an increased risk of 6.3 times that of non-users.
• Many women do not use the safest brands of birth control pills.
• The safest option for women (with regard to venous thrombosis) is a birth control pill that contains levonorgestrel, combined with a low dose of estrogen (again, women have lots of options).

Lidegaard, et al. Hormonal contraception and risk of venous thromboembolism: national follow-up study. BMJ 2009;339:b2890.

• Drosperinone-containing birth control pills are associated with a higher risk of venous thrombosis than contraceptives containing levonorgestrel.

Yasmin and Yaz both contain the progestin drospirenone—the dangerous one cited in the studies. As a reminder, venous thrombosis is a blood clot that forms in the vein. If the clot breaks off, it can be transported through the circulatory system to the heart or lungs (becoming an embolism). These can be fatal if not treated immediately. Bayer’s comment on the studies: they haven’t seen the data, and can’t comment. But Bayer has to be concerned that this drug should not have been placed on the market. Bayer also does not have the "life saving product" defense that many drug companies - some quite correctly - use. Birth control pills are not saving lives and there a lots of competing drugs that are clearly safe. For more on the Yasmin/Yaz saga, visit:

• Our main Yasmin/Yaz information page
• Information for Yaz lawyers to screen potential Yaz claimsYasmin/Yaz Lawsuits Blog (Yaz lawsuits overview)
• Yasmin/Yaz MDL Motion Filed
• What is an MDL? -or- Yasmin/Yaz MDL Filed, Take 2

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There are numerous programs out there for medical malpractice and accident lawyers conducting case and statutory research. The general maxim is that you get what you pay for, but several free research sites are useful, if nothing else, to perform preliminary investigation. We’ve all heard the horror stories of the new lawyers who did not know his firm’s subscription plan and inadvertently cost the firm thousands of dollars for what should have been routine research. Therefore, it is important that all employees know the terms of the subscription. Some of your options are:

Westlaw  and LexisNexis: These are the premium legal research companies. Subscriptions can be limited to specific databases (for example, all federal and state cases, or just cases from specific states). The two companies are extremely competitive with each other, and are typically equivalent for most features.

 

LoisLaw: A more inexpensive legal researching tool, LoisLaw bills itself out as a research solution that helps practitioners manage their costs and streamline their research time. 

 

Fastcase: another inexpensive legal researching tool that includes state, federal and appellate decisions, as well as statutes and regulations. 

 

Additionally, you should check governmental websites, which frequently have their statutes easily available and searchable for free. 

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For all of the information available on line, I have never seen a personal injury trial transcript.  We added a sample trial transcript on our website that might be assistance for lawyers looking to a sample as they prepare for trial.  Our lawyers have also prepared a full list of other trial trancripts and witness outlines.    I know I would have like to have had these when I was walking into my first personal injury trial.

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Backup of firm data is another important component to your data storage plan. Recent disasters, including Hurricane Katrina, emphasize the need for a solid backup plan. The frequency with which your firm backs up its data depends on a number of factors, including the firm size and the firm’s reliance on computer data. A good policy for backing up firm data is to do it every day, so you do not lose more than a day of work in the worst case scenario. There are two components to a good firm data storage plan: on-site and off-site backup.

On-Site Backup: Like external hard drives, on-site backup is basically a process whereby changes to the firm’s network are copied every day at a certain time to backup “tapes.” The tapes should be manually rotated every day, and stored in a secure location (possibly a fire-safe). Typically, daily backup tapes are saved for a week to ten days, and you should have monthly backup tapes for about the past year.  

 

Off-Site Backup: Like on-line backup, this is a process whereby the information on your network is saved daily to a remote server, allowing access to data if disaster strikes your network or if you need to access a prior version of documents you’ve updated. Your vendor will make an exact copy of your total data, called a “seed,” and will store it on their data center. Then, once a day (typically at night), the changes made to your firm’s data are uploaded over the internet, modifying the vendors data. Your vendor will keep a regular rotation of information, so they can recreate the data as it existed in your network at specific points in the past. If you need to pull individual files, or backup the entire system, they can facilitate the process.

 

How often has our law firm need to check out our backup?  Never.  I've also never had to make a homeowner's insurance claim either.  But it is important that I stick with both.

 

 

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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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