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SPRING 2005 PRACTICE POINTERS - LESSONS LEARNED AT TRIAL

Copyright 2005 MAJ and T. Joseph Kane Crumley

Trying cases is always a learning experience, even for us old codgers. No matter how long you’ve been trying cases, no matter how many cases you’ve tried, something new and interesting can always occur. Here are a number of lessons learned at trial by your editor and other MAJ members.

Continuances- Don’t get mad, get organized!

MAJ member Mike Bryant had a trial cancelled after weeks of preparation. “It’s human nature to be frustrated when a case gets continued at the last minute. You’ve got all your arguments prepared, the exhibits are marked, you’re ready to go… And then the defense attorney convinces the judge to continue the case. The temptation is to slam the file into a corner and return immediately to all the other work you have.” Mike says, “Don’t do it!”

Mike and his staff immediately sat down with the file and made sure all the materials were properly filed. He made sure all of his notes, Post-its and ‘midnight inspirations’ were fully dictated and organized. He videotaped his opening statement and closing argument while they were still fresh. Only then did Mike and his staff set the file aside, with a diary date 60 days before the new trial date.

Four months later, as the new trial date approached, Mike was amazed to find how much that organization helped. There was a huge amount of valuable information contained in the additional notes and videotapes that might have been lost. “Within no time, we were back up to speed and ready with all the energy that we had the day before the previous trial date.”

Lesson Learned: Organize your file if your trial is continued.

Voir Dire on Insurance Question – THE WHOLE RULE!

We all know that Rule 123 of the General Rules of Practice for the District Courts requires the judge to ask the insurance question. What we forget is the level of complexity of the question. The rule suggests disclosure of the “insurance company or companies” that “are not parties but are interested in the defense or outcome of the action…” Some lawyers and judges simply recite the name of the liability insurer. Wrong! It is a rare case where there is only one interested insurance company! What about:

The rule requires not only the company be disclosed, but also the “name of the local agent.” Clearly, the rule uses the word agent to include all agents involved in the company, including the sales agent that sells the policy but also adjusters (who are agents of the company). Surely, adjusters familiar with the facts may have discussed the case with friends and neighbors that could be unknowingly sitting in your jury venire.

It’s just as important to make sure that the court asks about each possible interest jurors might have. If the judge simply asks if the jurors carry insurance with a certain carrier, and then moves on, don’t sit still! It is the attorney’s duty to object and approach the bench to remind the court that the rule requires inquiry into whether the jurors are:

These are the actual words of the rule.

It is also important to listen carefully to the instruction to make sure that each inquiry is complete. If it is not, the court must be reminded of the language of the rule, preferably immediately to prevent additional repetition later in voir dire.

Lesson Learned: Ask for the ENTIRE insurance question!

Credibility - From Open to Close

Your editor was recently reminded of the importance of attorney credibility. Make sure that you can deliver on your promises made in opening statement. Just as important is pointing out the failures of the defense. If the defense attorney outlines his opening statement and promises on a flip chart, those pages should remain in the courtroom. Then, when you stand up for your closing argument, there is nothing quite so dramatic as flipping back to those pages and writing, “NO” in big letters right next to each of the promises of the defense attorney, in the defense attorneys own handwriting!

Even if the defense attorney does not use flipcharts, you can still use the technique in your closing. Explain to the jury what detailed notes you took during opening statements, and “chart” them yourselves, before crossing them out, one by one.

Web-Check the Experts

Adverse experts have been known to exaggerate their qualifications or sidestep shortcomings so deftly that the plaintiff’s lawyer may not even notice it. Why not arm yourself in advance? Sure, it’s good to check the MAJ Deposition Bank[1], but take another step:

The American Board of Medical Specialties (ABMS) website[2] maintains an online list of all board-certified specialists. Some of the member boards[3] also maintain directories of their websites, but others require a written request for information in advance.

In a recent case, the orthopedic surgeon adverse examiner did not appear on the ABMS or the Orthopedic website, despite his claim of being a board certified. (I checked that my own treating doctor was not only board-certified, and also discovered online that he held the “subspecialty certificate” in Surgery of the Hand.) The defense doctor had testified in the past that he was a board-certified orthopedic surgeon, so I suspected that it was probably an oversight or misspelling. In cross examination, I discovered that the doctor had not renewed his board certification in time, and it had lapsed for several months. (We old codgers forget, but anyone board certified since the mid-1980s needs to renew every ten years.) He also admitted he never had earned a “Hand subspecialty certificate”, despite his extensive protestations of hand expertise. MAJ student member Valerie LeMaster suggested several other very valuable online medical information resources[4].

How about checking the doctor’s website? Often there will be an online CV and other goodies. I recently learned just before trial that my doctor headed a charitable program that provided free corrective surgery for third-world victims of congenital disfigurement. Although he had testified several times in the past, he had never been asked about this wonderful activity.

Lesson learned: Web-check the experts!

Deposition Readers Redux

This was discussed last issue by your other editor. Your current editor saw a perfect example, in spades! When I crossed the adverse doctor on a recent case, I was extremely impressed with his appearance. Tall, handsome, with a sprinkling of gray in his perfectly-coiffed hair. A deep, “FM radio” voice, great eye contact, and a very assuring smile. He looked like George Clooney and sounded like Marcus Welby!

Fortunately for me, the defense attorney did not bring the doctor to trial, nor did he use videotape. Instead, he had the deposition read by his legal assistant, a very nice, very intelligent, very hard working Russian-born man with a slight accent. Unfortunately, he was not a great reader.

Sometimes, even the most eloquent people make poor readers. You know that weird-looking kid in the back row of your third grade class… you know, the one where everyone shuddered when it was his turn to read aloud because he stuttered and stumbled over each word? Some people never grow out of that.

In addition, the defense reader in my case was also unfamiliar with the medical terminology, and hadn’t sat through the plaintiff’s case. The jury had heard difficult words and phrases like “spondylolisthesis” pour effortlessly off my doctor’s tongue the day before, and even I had learned to say it. Sadly for the defense, his reader tripped over this (and almost every other medical term). It was very painful, and it was hard to ignore.

Lesson Learned: Get a good reader.

ive at Trial

There are huge advantages to having the doctor testify live at trial, assuming the doctor doesn’t sound or look like a serial killer. Not only does a live witness make a bigger impact[5], but plaintiffs have the advantage of knowing the defense doctor’s testimony if it is already “in the can.”

At an adverse cross, held a week before a recent trial, I seemed to fall into the old trap of arguing medicine with the doctor. I argued that the one of my client’s finger bones was comminuted, and was still in several pieces. He responded to me like a small, stupid child. This went on for a few questions. His words were, “No, there’s only a bit of a delta phalanx,” but his tone of voice said “Here you go, little boy, here’s your lunch…. now eat it like a good little boy… Now go run outside and play.”

I’m sure the doctor and a defense attorney both thought me foolish to break a cardinal rule and argue medicine with a doctor. But I knew my treating doctor had better qualifications, would testify first, and would (hopefully) give detailed explanations for the medicine in the areas I was arguing. And I was right.

Of course, the jury heard my doctor’s live testimony first. And yes, my doctor referred to the bone as “fragmented.” My doctor showed close-ups of the x-rays six feet high on a big movie screen (using MAJ’s Elmo, projector, and screen, which members can rent). The bone in question was visibly in many pieces. When the defense doctor’s chiding testimony was read the day AFTER my doctor’s live testimony, I’m sure it was somewhat puzzling to the jury. By then, they all had seen a literally splintered bone; the defense doctor sounded foolish.

MAJ Living Legend John Goetz long ago taught your editor how to get reluctant doctors to come to court – short of serving a subpoena. Arrange a driver to pick them up and whisk them to court and then directly back to their practice. Explain that the judges will schedule around them flexibly, defense attorneys will be better behaved (and there will be fewer objections), and it will assist in their communication with the jury.

Lesson learned- Call your expert live!

Motions in Limine - even on the obvious

ark Stageberg tells of a recent wrongful death trial. During her cross of the surviving husband, defense counsel asked, “You're remarried aren't you?” Mark says he “blew up” and moved for a mistrial. The defense attorney claimed ignorance of the long standing Minnesota rule against evidence of remarriage in a Wrongful Death case. The judge denied mistrial and only gave a cautionary instruction.

Lesson Learned: Don't assume your opponent knows the law! In every case, move in limine to exclude any controversial issues, no matter how obvious you think they are.

Member Gary Manka tells a similar story with a different result. He once had a defense attorney ask his client on cross, “Isn't it true that you are an alcoholic?” As Gary started to jump up and vociferously object, his client calmly pulled an AA medallion out of his pocket and answer, “Yes, but have not had a drink in 13 years, 8 months and 23 days.” The silence in the court room was deafening. Gary says the jury punished the defense attorney in their verdict.

Lesson Learned: Sometimes it is better to shut up and let the defense ask the dumb question.









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