Earlier this month, I had a three-day jury trial in a car accident case in the Circuit Court for Montgomery County. I tried the case along with the referring lawyer under a Rule 1.5 fee-sharing agreement. Although he is an experienced lawyer, he had never handled a jury trial before because his practice is primarily transactional. He sat second chair, handled a few of the witnesses, and did a great job.
We do this pretty frequently here at M&Z. We encourage our referring lawyers to stay as involved in the cases as they wish. This can range from a straight referral where M&Z has primary responsibility for the case, to a true co-counsel relationship with shared responsibility where we try the case together. I love trying cases with other lawyers, whether it is splitting a trial down the middle with another experienced M&Z trial lawyer or having a less-experienced attorney sit second chair as a learning experience. We had a great time, and our client ended up being very satisfied with the jury’s verdict (which was more than 5 times the last settlement offer of the medical bills only).
Our client was a young woman who had sustained a knee injury in the accident. The defense hired one of the local “usual suspects” to perform a defense medical examination and to give opinion testimony at trial.
When cross-examining these kinds of expert witnesses, I try my best not to get into an argument about medicine that I will probably lose, since the witness is a doctor and I am not. Instead, my cross is directed at exposing the witness as who he is- a partisan hired gun closely aligned with the defense bar who was giving the defense the favorable opinion that it paid for and that it knew it would get as long as the check cleared.
Before trial I served the witness with a subpoena seeking a variety of documents, including all of his correspondence with the defense attorney.
When I began my cross, the first question I asked was something like this: Doctor, isn’t it true that when you examined my client you knew that you had been asked to examine her by a defense attorney for the purpose of giving opinion testimony for the defense in this court case?
The answer: Of course not. All I knew was that she was there for an examination, but I didn’t know if the person who requested the examination was an attorney, or if there was any litigation going on.
This was a lie.
I asked the judge for permission to approach the witness. I walked over to the witness stand. I picked up the letter the defense attorney had sent the doctor to schedule the exam. I asked the clerk to mark it as an exhibit for identification. I handed it to the doctor.
I asked him to read the “Re:” line of the letter. It said “Smith v. Cab Co., Inc., Circuit Court for Montgomery County.” I asked him who the letter was from. It was from the defense attorney. I asked him to read the third paragraph to the jury. It specifically asked him to render an opinion on whether there was a causal relationship between the car accident and my client’s knee surgery. I asked him to read the first sentence of the final paragraph to the jury. It asked the doctor to send his report to the defense lawyer as soon as possible, because there was a pretrial conference in two weeks.
I don’t think the jury put much stock in his testimony after that.