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Articles Posted in Trial Strategy

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:

When a driver gets sued for injuring somebody in a car accident, they don’t have to go out and spend their own money hiring a lawyer to defend the case. They call up their car insurance company and tell it that they have been sued. They send in the papers, and the insurance company provides them with a defense attorney.

Sometimes this is an “in-house” insurance defense lawyer, other times it is an outside lawyer selected and paid by the insurance company. Either way, the insurance company picks and pays for the driver’s defense attorney. So what you have is a three-sided (or “tripartite”) relationship- insurance company, defense attorney, and defendant driver.

Whether in-house or outside counsel, the defense lawyer has a paramount ethical duty to act in the best interest of his or her client- the defendant driver. This is true even though the insurance company selected the lawyer, is paying the lawyer’s fee, and controls most of the important decisions in the litigation, including whether to settle and on what terms.

This one is courtesy of Dorothy Clay Sims. We often see expert witnesses with resumes three feet thick, full of impressive-sounding credentials like faculty appointments, society memberships, and consulting gigs.  Most lawyers start off experts with a long recitation of their knowledge, skill, experience, training and or education.  This is unadulterated effort to impress the jury.  The expert is saying, I’m crazy smart and qualified and you should listen and believe what I’m telling you. Most experts that testify sound great on background.  I’m rarely not wildly impressed.

Bloated Resumes Look Bad

But what if that resume is a lot of puff.  If you can prove it is just a little puff, it tears down the veneer of credibility the expert is trying to build.  Often, it pays just to ask. Just recently, I found three inaccuracies on a defense expert’s C.V.

As you can tell by some of my recent blog posts, I have been spending a lot of time lately cross-examining defense medical experts. Today I want to talk about using defense experts to bring in favorable opinions.

As I write this, I’m sitting in a hotel in Houston, Texas. I’m here for depositions of some out of town medical experts. So I thought I would share a great tip for cross-examining defense medical experts: Use their own ethics code against them.

Nearly every medical expert belongs to some sort of professional group that has an ethics code. The American Medical Association, American College of Surgeons, the American Psychological Association, and American Association of Neurology all have their own ethics rules. So do most other medical professional groups. Sometimes they even have specific guidelines for giving expert testimony. These can be great fodder for cross.

Most of their members are aware these ethics rules exist but are unfamiliar with their content. If they have ever read them at all, it was usually years ago. But they really have no choice but to admit that the rules exist and that they are governed by them. I mean really, who would refuse to admit to being subject to their own professional group’s ethics rules?

There is really no way to be a competent personal injury lawyer without spending an awful lot of time reading medical records. Poring through stacks of records is boring, time-consuming, and we are all faced with an ever-increasing list of seemingly more important things to get done.

Many lawyers have a paralegal read and summarize these records (if anyone reads them at all) because a) they don’t want to do it; b) they think their time is too valuable to spend on it; and c) they don’t want to do it. Did I mention they don’t want to do it? I did? Good.

I am not one of them, although I have an excellent paralegal who usually does a run-through of the records and attaches a cover memo pointing out entries of interest. This is very helpful, but I read them all myself every single time, and create my own contemporaneous notes. Not just the records generated as a result of treating the injury my case is about, but also any prior medical records I can get my hands on.

I recently wrote about a problem we are seeing more and more often in car and truck accident injury cases- mismatched experts designated by defendants. What we mean by “mismatched experts” is that the expert identified by the defendant appears to be of the wrong type, or in the wrong field.

deposition2-300x215I had this situation recently in a car crash case. My client had a shoulder injury. Specifically, an AC joint separation that required surgery. The main issue in the case was whether the shoulder surgery was causally related to the car crash. My expert witness was one of the treating doctors- a local orthopedist who specializes in upper extremity surgery. This doctor is known as one of the top shoulder specialists in the area.

The defense did what would seem like the natural thing to do- it named an orthopedist as an expert witness. The problem was that the orthopedist the defense chose limits his practice to spine surgery and does not treat shoulder problems at all.  Why do they do this?  Cynically, I’ll tell you that most of these insurance companies would rather have an expert that they know will offer any testimony that they want.  They would rather have someone who is barely qualified to testify that they have paid well over the years than to hire someone who might slip and give a truly impartial opinion.

Maryland has an increasingly diverse population. This means that our court system needs to keep pace with the needs of our residents. By law, this includes providing interpreter services to those who cannot communicate effectively in English.

Here is an article from the Baltimore Sun about how courts in Baltimore City and Baltimore County are addressing this issue.

Because my personal injury practice is statewide, I have noticed that some courts deal with the issue of providing interpreters more effectively than others. I have found Montgomery County to be most effective and best able to provide interpreters in many languages on short notice. I think this is because Montgomery County has long been one of the most ethnically diverse counties in the state, so they have developed substantial experience serving a variety of non-English speaking populations. There are generally Spanish interpreters available on a few minutes’ notice, and there is an established procedure for quickly and simply requesting interpreters in most languages, who actually show up when they are supposed to be there.

One of the most annoying parts of representing plaintiffs in personal injury lawsuits is locating and serving the defendant driver with process. For non-lawyers, “process” refers to the summons issued by the court when a lawsuit is filed. The summons is an order from the court notifying the defendant of the lawsuit and directing her to respond within a particular time period. It is designed to make sure that anyone who is subjected to a lawsuit is given notice of the case and a chance to respond.

Most often, service of process is made by having a process server physically locate the defendant and hand her the papers. The process server executes a sworn affidavit documenting service, which is then filed with the court.

What if you can’t find the defendant to serve her? Or if the defendant has been served, but has never participated and seems to have vanished? You must consider filing a Motion for Alternative Service or a Motion for Entry of Order of Default.

I often wonder what (or if) other lawyers are thinking. Here is an opinion from the Court of Appeals of Maryland reviewing the rules applicable to holding a lawyer in direct criminal contempt of court.

This arises out of a criminal case for driving without a license. We don’t handle criminal cases at Miller & Zois, but the lesson to be learned here doesn’t have much to do with the facts of the underlying case. It is enough to observe that the defense attorney got into a disagreement with the trial judge about a procedural aspect of the case’s disposition. He protected his record about the disagreement and was overruled. Then, the defense lawyer just walked out before the judge had even finished ruling. The court issued an order holding the lawyer in contempt.

The lawyer appealed to the Circuit Court, which remanded the case back to the District Court because the trial judge’s initial order of contempt did not comply with the fairly complicated and little-known procedural rules governing the imposition of sanctions for direct criminal contempt. The District Court judge then entered a revised order, clarifying the original one and still holding the lawyer in contempt. The lawyer appealed again to the Circuit Court, which this time affirmed the contempt order. The lawyer then appealed again, with the case ultimately winding up in the Court of Appeals.