Thursday, March 31, 2005
One Tough Client
Met with a new client the other day to discuss his Workers' Compensation case. The client, an immigrant, has been working at a Chicagoland area company for some 30 years as a mechanic. He fixes the machines when they break down. Last August he was fixing a pulley machine and had gotten it back together when he was distracted and accidentally allowed his hand to touch one of the pulleys. Right hand gets sucked into machine, he loses most of his index finger, a good deal of his little finger and suffers enormous muscle and skin damage to the remainder of the hand. He has limited motion and feeling in the hand. Can no longer close his hand around a hammer. An enormous injury. I've seen clients carry on an on about far less serious injuries. This guy? No big deal. According to his kids[who came to the interview to help translate]the ambulance attendants said he rode in silence to the hospital, and made no complaints. He rushed through therapy so he could get back to work. Back fixing machines, with only one good hand and never complains. I told the kids we should at least investigate a products liability claim. Juries typically respond very well to people like this guy - suffered a terrible injury but isn't going to let it ruin his life.
Monday, March 28, 2005
Good Advice about Clutter
Every month the ABA Journal has a column "McElhaney on Litigation". The column is written by James W. McElhaney, the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland, and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. The column in the April 25, 2005 issue commented on how to put on a streamlined, clutter-case. I have paraphrased some of the author's points below(with apologies to the good professor):
1. If evidence doesn't help your case, it hurts. Dump it.
2. Concede the points you will not win and move on. If you think your argument on a certain point stinks, odds are the jury will likely hold the same opinion - or worse. Don't risk your credibility on a issue or fact you won't win.
3. Show the jury that your cause is just and the defendant's arguments are not. Juries like to right wrongs. As Professor McElhaney notes "...the key to big damages is big fault".
4. Get rid of those claims that that make your client look greedy. Example: years ago, I was involved in a medical malpractice case where the plaintiff, a nice old guy in his late 70's had a bad result after a hernia operation. He had legitimate pain issues. In addition however, he further claimed the malpractice had impacted his sex life- he could no longer have sex with his wife(also in her late 70's) four to five times a week like he had before the surgery. The defense lawyers could barely contain themselves at his depo. Needless to say, that portion of the case was dropped. Again, to paraphrase McElhaney, don't let your client become a victim of his own rhetoric.
5. Be careful advancing inconsistent claims. Although the law may allow for it, juries usually won't understand the distinctions, no matter how hard you try to explain them in closing.
6. Drop any evidence or theories if they don't into your overall scheme of the case[no matter how brilliant they may be].
7. Don't put in all the evidence you have. First, the last thing the jurors will be thinking[before nodding off]is that the case, is boring and repetitive. Secondly, putting all that evidence in just gives the defense all kinds of opportunities to score easy baskets when an inconsistency inevitably surfaces.
8. Be careful choosing your witnesses. You want your witnesses to be pleasant, understandable and interesting. If possible[and sometimes it simply isn't]avoid using pompous, self-important windbags who love the sound of their own voice. Again, sometimes you can't avoid the self-important windbag/expert. If so, spend extra time preparing said windbag. Try to make him human. Have him discuss the years he served[at no cost] as the high school team doctor. Stop him when he uses those big medical words and have him explain, in English, what they mean. Maybe you'll want to put a piece of chalk in his hand and have him draw the cervical spine on a blackboard and highlight where the fractures were located. If you can get the jury to see the expert as someone they would trust to help them with a complicated issue, you've done well.
9. Charts, graphs, pictures and summaries make impressions and save time. The jury will silently thank you.
10. Don't try to hide bad evidence. Bring it out yourself. Don't give the defense an opportunity to bludgeon you with something.
1. If evidence doesn't help your case, it hurts. Dump it.
2. Concede the points you will not win and move on. If you think your argument on a certain point stinks, odds are the jury will likely hold the same opinion - or worse. Don't risk your credibility on a issue or fact you won't win.
3. Show the jury that your cause is just and the defendant's arguments are not. Juries like to right wrongs. As Professor McElhaney notes "...the key to big damages is big fault".
4. Get rid of those claims that that make your client look greedy. Example: years ago, I was involved in a medical malpractice case where the plaintiff, a nice old guy in his late 70's had a bad result after a hernia operation. He had legitimate pain issues. In addition however, he further claimed the malpractice had impacted his sex life- he could no longer have sex with his wife(also in her late 70's) four to five times a week like he had before the surgery. The defense lawyers could barely contain themselves at his depo. Needless to say, that portion of the case was dropped. Again, to paraphrase McElhaney, don't let your client become a victim of his own rhetoric.
5. Be careful advancing inconsistent claims. Although the law may allow for it, juries usually won't understand the distinctions, no matter how hard you try to explain them in closing.
6. Drop any evidence or theories if they don't into your overall scheme of the case[no matter how brilliant they may be].
7. Don't put in all the evidence you have. First, the last thing the jurors will be thinking[before nodding off]is that the case, is boring and repetitive. Secondly, putting all that evidence in just gives the defense all kinds of opportunities to score easy baskets when an inconsistency inevitably surfaces.
8. Be careful choosing your witnesses. You want your witnesses to be pleasant, understandable and interesting. If possible[and sometimes it simply isn't]avoid using pompous, self-important windbags who love the sound of their own voice. Again, sometimes you can't avoid the self-important windbag/expert. If so, spend extra time preparing said windbag. Try to make him human. Have him discuss the years he served[at no cost] as the high school team doctor. Stop him when he uses those big medical words and have him explain, in English, what they mean. Maybe you'll want to put a piece of chalk in his hand and have him draw the cervical spine on a blackboard and highlight where the fractures were located. If you can get the jury to see the expert as someone they would trust to help them with a complicated issue, you've done well.
9. Charts, graphs, pictures and summaries make impressions and save time. The jury will silently thank you.
10. Don't try to hide bad evidence. Bring it out yourself. Don't give the defense an opportunity to bludgeon you with something.
Wednesday, March 23, 2005
Medical Malpractice Case Settles
I am pleased to report the medical malpractice case I mediated on Friday, March 18, 2005 settled. The defendants asked for confidentiality, and typically I would not agree. In this case, however, there were valid reasons so I won't go into details regarding the settlement.
I will comment however, on negotiation tactics that I saw at the mediation and have begun to see with increasing frequency. The defense lawyers/insurance companies are not responding to the demands that I make[and they request]. Instead, they indicate the demand is "too high" and they won't make an offer until I reduce it to a range they find acceptable. The objective obviously is to get the numbers down before they even get into the game. In my experience thus far, they use this tactic only in cases where there is no chance of a runaway verdict. I doubt this is happening in Illinois alone, and probably is a tactic being used nationwide.
I will comment however, on negotiation tactics that I saw at the mediation and have begun to see with increasing frequency. The defense lawyers/insurance companies are not responding to the demands that I make[and they request]. Instead, they indicate the demand is "too high" and they won't make an offer until I reduce it to a range they find acceptable. The objective obviously is to get the numbers down before they even get into the game. In my experience thus far, they use this tactic only in cases where there is no chance of a runaway verdict. I doubt this is happening in Illinois alone, and probably is a tactic being used nationwide.
Wednesday, March 16, 2005
A Brief Introduction
INTRODUCTION
I just got this blog up and running and will be fine tuning it in the weeks to come. I hope it provides some benefit to those who read it.
MEDICAL MALPRACTICE MEDIATION
I am scheduled to mediate a medical malpractice case on Friday, March 18, 2004. Mediation is an alternative to trial where a trained mediator/lawyer attempts to bang out a settlement between the parties. The case involves a young boy who nearly died after an umbilical hernia repair, which should have been a fairly routine surgery. The attorneys for the defendant doctors/hospital have indicated they wish to settle the case, perhaps through a structured settlement but no offer has been made. Will report further after Friday's session.
I just got this blog up and running and will be fine tuning it in the weeks to come. I hope it provides some benefit to those who read it.
MEDICAL MALPRACTICE MEDIATION
I am scheduled to mediate a medical malpractice case on Friday, March 18, 2004. Mediation is an alternative to trial where a trained mediator/lawyer attempts to bang out a settlement between the parties. The case involves a young boy who nearly died after an umbilical hernia repair, which should have been a fairly routine surgery. The attorneys for the defendant doctors/hospital have indicated they wish to settle the case, perhaps through a structured settlement but no offer has been made. Will report further after Friday's session.
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