Articles Posted in Trial Strategy

Arbitration is a form of resolving civil disputes privately, outside of the actual court system.  Instead of taking their case to court and having it decided by a jury or judge, both parties voluntarily agree to have the case heard and decided by a private arbitration panel.  Arbitration is different from court litigation in a number of significant ways.  It offers many advantages compared to a trial in the court system. But it also has a number of drawbacks.  This article summarizes both the perks of arbitration and the drawbacks as compared to the traditional method of litigating in the court system.

We do not arbitrate as many cases as we did ten years ago.  Why?  First, we handle more malpractice cases than we ever have and malpractice does not lend itself to arbitration.   But I honestly think there are not as many good arbitrators for serious personal injury cases as there once were.  Most arbitrators also do mediations.  Anyone would rather do mediations than arbitrations because when you make a final call, someone is usually unhappy.   So it seems like every time a new mediator/arbitrator comes on the scene and is well received, they soon are no longer doing arbitrations. Also, many arbitrators are retired judges who are close to retiring again.

Anyway, if you are considering arbitration, here are some pros and cons to consider.

In a personal injury lawsuit, plaintiffs are entitled to get compensation for the economic losses resulting from their injury including lost earnings.  So if you’re not able to work for an extended time because of the injury, you are supposed to get money to compensate for the income you lost.

If you file a lawsuit and ask for lost earnings, you don’t simply tell the court how much you lost.  Damages for lost earnings must be calculated based on evidence.  If you are a W-2 employee with a salary, lost earnings calculation is easy.  You just present documentation from your employer stating what your lost wages were. There may be a battle over whether the employee needed to take off work.  But the calculation itself if very simple.

Self-Employed Calculations Are More Complex

cross-examinationThe most important part of a personal injury trial is the plaintiff’s testimony.  Specifically, the most critical part of a trial is the personal injury plaintiff’s direct examination.  If it doesn’t go well when you are in total control of the process and the facts, it will be nearly impossible to get a favorable damages award. We believe in thoroughly preparing the plaintiff to testify, both on direct and cross-examination.  I would not be surprised to learn that our firm spends more time on direct examination preparation that any firm in Maryland.

Witness preparation is a broad term that covers any communication between a lawyer and a prospective witness done to get the most favorable possible substance or presentation of trial testimony.  It also helps the lawyer know precisely what the witness is going to say on direct examination.

By the time the trial draws near, most experienced personal injury lawyers will have a pretty good idea of what’s out there as far as potential cross-examination material. This comes from a variety of sources: interrogatory answers, medical records, deposition testimony, prior medical history, etc.  But you really do not know what someone is going to say until the tell you what they are going to say.  And, as experienced trial lawyers know, even then you are still not entirely sure what will come out of the witness’ mouth.

Certainly, given their preference, plaintiffs’ lawyer will choice PG County or Baltimore City as the venue for almost any Maryland accident case.

If our case is not in Baltimore, we want to be in P.G County if I have a Maryland traffic accident case.

The difference cannot be understated.  There are other differences unrelated to the harm caused that make a difference like the type of case (e.g., auto versus malpractice), the likability of the parties, and whether the defendant is a person or a corporation or hospital.  But if you could have the same case in Prince George’s County or the Eastern Shore, There are some cases where the trial value of the claim might be worth twice as much.

Putting a bad pun in the title is always a great start to a blog post, right? Try the veal, I’m here all week.

But seriously, proving medical causation of an injury in a personal injury case nearly always requires expert medical testimony. There a few exceptions for objective injuries that would be obvious to a layperson (like cuts and bruises), but generally proving medical causation requires a physician to testify that within a reasonable degree of medical probability, the injury or medical condition was causally related to the accident.

The most obvious source of this testimony is the plaintiff’s treating physician. There are strengths and weaknesses in using a treating physician as an expert witness. One of these can be that since you generally do not choose the treating physician, you are stuck with their qualifications, however good or bad they may be.

A few months ago, I tried a case in Montgomery County Circuit court and got a great verdict. Shortly afterward, I received the defendant’s motion for a new trial. I read the motion, and discussed it with a few of the other lawyers in my office. None of us thought it was a strong motion, and we all believed it was likely to be denied. Until I got a hearing notice in the mail.

Well, I live in Baltimore County, near Towson. I have to be in the car by 7:30 if I hope to be in Rockville by 9 a.m., and I need to make alternative arrangements to get my daughter to daycare since they don’t open early enough to drop her off and still get to Rockville in time.

So the day of the hearing arrives, I make my arrangements, leave early, and drive the 1.5 hours to Rockville. Shortly before 9 a.m., I am sitting in the lobby outside the courtroom when our judge’s law clerk come out and lets me know that our judge was out sick, and the hearing would need to be rescheduled. Bummer, but O.K., everybody gets sick. I have had hearings rescheduled before because I got sick. It’s part of life. So we reschedule the hearing for the following Monday and I drive an hour back to my office.

Here is another great real-life trial preparation tip that I have forgotten myself in the past:

Check the weather the day before!

I am finalizing my preparations for a trial tomorrow in a car accident case in Baltimore County Cicuit Court. According to weather.com, there is a 60% chance of rain tomorrow morning. So my trial prep now includes making sure I remember my galoshes, raincoat and umbrella. It is hard to make a good first impression on the jury when you look like you wore your suit in the shower. From a performance perspective, it’s nearly impossible to be at your best when you have wet, cold feet. I know I look like a dork in my galoshes. A warm, dry dork. So I don’t care.

Having the right equipment is worthless unless you know how to use it. That is why the second important element to using multimedia at trial is preparation. I never, ever, ever use anything at trial that I have not practiced with. For PowerPoint, this means doing a complete practice run just as if I was at trial. This starts with unpacking and setting up the equipment from scratch. Then I click through each slide to make sure that they are in the correct order, they all work and that they appear big enough for the jury to see them.

PRACTICE TIP: I hate text slides and bullet points. So do the experts. I only use PowerPoint for images (photos and important documents) and video. I want the jury focused on me, my client and the story I am telling, not looking past me to read text on a screen. I only use text slides in two circumstances: showing jury instructions in conjunction with my argument, and showing the verdict sheet as I believe it should be completed.

The preparation for using video is basically the same, but may be even more important. If you have a malfunction in opening, you can always ditch the PowerPoint and go old school, Moe Levine-style. Heck, if handled gracefully it might even help you with the jury by humanizing you and showing you are cool under fire. Good lawyers can tell a compelling story with nothing but their words, eyes and body language. Expert video is different. You can’t toss it aside if it doesn’t work because then all of your medical evidence is gone. You have a huge hole in your case where the expert testimony on medical treatment and causation should have been. Yeah, I guess you could read the testimony into the record if there was really no other option, but that is just awful. Unpersuasive and irritating.

OK- I am pulling a bit of the ol’ switcheroo here. I know you were probably expecting this installment of my series on trial organization to focus on the trial binder. Relax, that’s coming. I decided to change topics at the last minute because I recently saw two blog posts that touch on another trial organization issue that I was planning to talk about anyway- using PowerPoint or other multimedia presentations at trial.

The legal field tends to lag far behind the business world in its use of technology. But our jurors live in the modern world. They are accustomed to most presentations being accompanied by digital media or video, and they expect this from trial presentations as well. They expect the technology to work right and they expect us to know how to use it.

cross-examinationI often use PowerPoint at trial. It’s more visually impressive than a foam-board blow-up, and I like being able to use the remote to click on images as I speak. I also use video a lot because often it is the only realistic way to present expert medical testimony. Many doctors are unwilling to close down their practice for an afternoon to appear live at trial, and for many cases the fee they would charge to come live is outside the budget for the case. This leaves only Plan B, which is a de bene esse video deposition to be played at trial.

In Part I, I talked about how useful a set of portable office supplies can be for staying organized at trial. But that is just a small part of the required level of organization. In this installment, I discuss another vital part of my overall organizational system- the trial box. Keep in mind that I am describing how I organize the typical 2-3 day jury trial. Longer, more complex trials travel in a larger set of boxes that are organized following the same basic outline.

I have a portable file box with wheels that all of my paper materials go in. This is a collapsible plastic box the size of a milk crate with wheels and a handle- the kind you see sales reps and business “road warriors” use. I organize it from front to back using file folders and large Redweld-style folders. Less important or less frequently used items go in the back, more important or often-used items are toward the front.

Starting at the back and moving forward, this is what it contains: