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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 differs 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 must 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 is 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 than 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 will 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 will say until they tell you what they will 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 choose 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.

twitter-300x198In the last few years, the use of social media has increasingly become an issue in the legal field. We are seeing social media being used as evidence in civil and criminal trials. There have been recent Maryland appellate opinions on how to admit evidence of social media use.

Social media is a good place for juror conduct that completely screws up a trial. In the good ole days, jurors who communicated inappropriately during a trial did so verbally.  Of course, this was hard to trace and prove.  Improper verbal communications could lead to a mistrial.  But it was so hard to make this case from an evidentiary standpoint. You needed live testimony from witnesses.  With social media, you can just wave the tweets and posts in front of the judge.

There have also been cases involving social media use by jurors. Here in Baltimore, there was an issue in the sensational Sheila Dixon trial about jurors becoming Facebook “friends” with one another. It has now become commonplace for jurors to be instructed that they are not to discuss their jury service on social media during the trial.

Two weeks ago I had a trial scheduled to begin on a Monday.

It was a jury trial that was set for a car accident trial to begin on an agreed date that had been selected 8 months earlier.  My client and his three witnesses — two of them experts — all cleared their schedules to make sure they were available.  I had blocked off the time on my calendar, and so did the two lawyers involved on the defense side.

The Friday before the trial was supposed to start, I received a call from the court’s assignment office.  We wouldn’t be able to begin our trial as scheduled because there was no judge available.  This put us on standby.  That meant that I could be called anytime before 1:30 p.m., and I would have an hour to get to court with my client and my witnesses, ready to begin the trial.  If I wasn’t called by 1:30, I was instructed to call back at 3:30 to see if we would be assigned the next morning.  I called my client and all of his witnesses and let them know of this development.  They were not exactly pleased.

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.

This issue can arise when the treating physician turns out to hold the degree of Doctor of Osteopathy rather than Medical Doctor. When this happens, it is a natural area of cross-examination. Juries expect physicians and expert medical witnesses to be M.D.s, and tend to be skeptical when they are not.

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 Circuit 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.

I highly recommend the overshoes that I wear (pictured), the Neos Villager. They come up well over the ankle, so they work great in rain or snow. They are more costly than simple rubber ones, but they work better and last longer. Mine were a gift (thanks, Mom!) but if they ever wear out, I will gladly buy another pair.

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: Text slides and bullet points are not recommended. Juries do not like them.  Use PowerPoint for images (photos and important documents) and video. The jury should be focused on you, your client and the story you are 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.

deposition6-300x200The preparation for using video is basically the same.  Actually, it may be even more important. If you have a malfunction in your opening statement, 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. An 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 changed 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.