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.

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

The 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.

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.

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.

The 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.

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?