Table of Contents. Having the Right Expert Testimony in Personal Injury Lawsuits Michael Ehline

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2 Table of Contents Table of Contents Editor s Foreword... 1 Interviewing A Prospective Personal Injury Client: A Primer for New Lawyers Steven M. Sweat Having the Right Expert Testimony in Personal Injury Lawsuits Michael Ehline Preparing Your Plaintiff (Client) for Their Deposition in a Personal Injury Case William W. Hurst Cross Examination of the Defense Doctor - 5 Fool Proof Tips Anthony Castelli Winning Your Personal Injury Case With Written Discovery Tactics Jonathan Rosenfeld Call for Submissions Personal Injury Warriors calls for submissions from Personal Injury Attorneys and Law Firms, however only the highest quality, original and factually correct information may get published within our online publication. If you would like to be considered as a contributor please contact us via the Contact Form on the Circle of Legal Trust website. Interested in advertising within this publication? Please contact us via the above link. April 2014

3 Editor s Foreword by Steven M. Sweat Editor in Chief Editor s Foreword Welcome to our second edition of Personal Injury Warriors Magazine, a publication dedicated to providing quality information that can assist both attorneys and laypersons with regard to personal injury claims. In this edition, we thought we would focus on the "procedural" aspects of prosecuting a tort claim from intake through trial. Obtaining the right information at the right time is critical to successful representation of clients who have been injured and are seeking compensation through the legal process. Sometimes this happens at the intake stage, sometimes during pre-trial preparation including discovery and sometimes during direct or cross examination of trial witnesses, including experts. This edition provides some tips that can be helpful at these various stages. Our 2 nd Annual Conference is taking place in Las Vegas, NV on April 25 th, where a group of attorneys are meeting up in person and online, for those who cannot attend see for more information. We hope you find it useful. For more information on Personal Injury Warrior Magazine or the Circle of Legal Trust go to: Personal Injury Warriors is a C.O.L.T. The Circle of Legal Trust, initiative; a resource for both attorneys and legal professionals for marketing their law firm and services, both online and offline. C.O.L.T. encourages the participation of attorneys and we have membership options for those wishing to advance their knowledge with respect to their online presence and the use of effective and ethical internet marketing to further their law firm. We have regular hangouts on Google + with featured speakers and industry experts that help one and all within our fraternity of attorneys that take an interest in their marketing activities. Join our mailing list on the site, by visiting: And stay up to date on our G+ page at: Or join our Community at: April

4 Prospective Client Interviews Interviewing A Prospective Personal Injury Client: A Primer for New Lawyers by Steven M. Sweat I nterviewing a prospective client is the first and, in many ways, the most important stage in the process of personal injury representation. Because most (if not all) injury lawyers take cases on a contingency fee basis, you can often make or break your bottom line by taking the right or the wrong cases. With experience, it becomes easier to distinguish between the good and bad cases (or clients) but, sometimes probing a little deeper can make the difference in obtaining the right information to make an informed decision about whether or not to take on a new file. These are some of the methods I use to get to the heart of the matter. The Who, What, Where, When and How of the Personal Injury Causing Event No matter if you are dealing with a traffic collision claim, a slip and fall or some other type of incident, you always want to get as much detail as possible about the basic events, including the persons involved and the facts and circumstances surrounding the incident. Who? The identity of the injured party or parties must be obtained. Information should be as comprehensive as possible and should include the following: Their full, legal name and any nicknames they have used in the past; their date of birth; whether they are married or single and whether they have children (ages); their physical address; identity of persons with whom they reside; all phone numbers where they can be reached including mobile and land lines; addresses (personal and work); current place of employment (including work schedule just prior to the incident and rate of pay and whether they are hourly or salaried employees); employment history (including terminations or resignations and reasons why); criminal history (if any, especially felony convictions or misdemeanors involving dishonesty or "moral turpitude"); medical history including any prior injuries especially to the same or similar body parts; and litigation or claims history (including the date and nature of any prior lawsuits, insurance claims, and/or workers compensation claims). You should also have at least a phone number, physical description and, hopefully, physical address for any person who witnessed the incident or any events leading up to it. The above is what I call the generic "who information". Just as important if not more important in this "who information gathering" is trying to figure out "who" you are dealing with on a personal level. While it is important and telling to know if they are a convicted felon or have been fired from their last three jobs, it is equally important to answer the question, "Is this a person with whom I can work?" To answer this question, you really need to assess if they will listen to your advice or try to be their own lawyer and if they have realistic expectations as to the value of their claim and the time and effort needed to obtain resolution. What Happened? You need to find out as much detail as possible about the events which led up to or caused the personal injury. Where was the person coming from prior the incident? What was their planned destination before the accident? What did they see or hear within the minutes or seconds leading up to the traffic collision? April

5 Prospective Client Interviews When finding out "what" happened, you need to make it clear to the prospective client that they must tell you "the good, the bad, and the ugly." If you do not know facts that could be used to argue that your client or a friend or relative may have contributed to the accident or injury, for example, you will never be able to provide good, sound advice and legal representation. Where? You need to pinpoint with as much accuracy as possible where the accident happened. Oftentimes, there will be a police report which contains precise location and measurements but, many times, these reports are either not made or are incomplete or inaccurate. I like to use Google Maps and Google Earth "street view" and, if the client is in my office or if I can pull it up on my phone or tablet, show the area to the client and have them mark up a printed copy, if possible. Having this visual of the number of lanes, the location of traffic signs or signals, the nature of adjacent property and other characteristics of the precise location of the accident can be crucial to an accurate recollection of where events took place. When? You obviously need to note the date of the incident for purposes of calculating the Statute of Limitations deadline and have a calendar system to track this date. I like to also put the date of the incident right on the jacket of the main file as a constant reminder. In addition, you need to know as specifically as possible the time of day to determine things like light conditions and visibility. How? Here again, we need both good and bad information to see "the big picture". For example, asking how did the vehicle in which your client was driving come to rest after it was struck and the approximate place of impact or what lead up to a slip and fall or assault can help you ascertain if your prospective client's version of what happened "adds up". In addition, finding out how a particular body part was impacted can tell you a lot about the claimed injuries. This is vital information in determining the validity and potential value of the claim. The other "how" question that must always be answered is "How will I satisfy payment on this claim?" Without a source to collect from, a judgment is worth less than the weight of paper it is printed upon. Mainly, you are looking at sources of insurance and things that may affect insurance coverage. You need to try to obtain the policy information (including the name of the Insurance Company [not just the broker], the NAIC # of that company, the policy number, the effective policy period and a claim number if the claim has already been reported. You want this information for not just the party or parties you think are at fault but, also for your own client. Prospective clients sometimes say, "I don't want to put this through my insurance because my rates will go up", to which you reply that this is highly unlikely if they are not found at fault and that their information is vital to your analysis. Your client's own insurance information is vital in case you need to file either an uninsured or underinsured motorist claim. It is also necessary, in states like California and several other jurisdictions, to know that your client had basic, required liability coverage to prevent an argument that they should be precluded from obtaining general damages for pain and suffering (See: California Civil Code [codification of "Prop. 213"]). If a police report is not taken or its availability is delayed, there are services that can check insurance index information and can verify coverage and provide policy information. The Importance of PERSONAL Contact Between Injury Lawyer and Prospective Client Not only is the attorney gauging whether he wants to devote months of time and financial resources to the prosecution of the claim but, he or she is also setting the tone for the remainder of the representation in that initial meeting. For this reason, it is crucial that the attorney personally speaks with the client after some, initial information gathering by support staff. Likewise, you are sending a terrible message about the quality of your representation to have a non-lawyer doing intake for your firm. This is just my opinion. Following Up Investigation As a Precursor to Representation Often times, obtaining information directly from the prospective client will be sufficient to ascertain the validity of the liability claims and damages and the veracity and "likeability" of the prospective client. In some cases, though, you will need to "check your sources" further. While it is completely possible and ethical to withdraw from representation in all jurisdictions including California so long as it is done in a manner which does not prejudice the client and informs them of any pending deadlines, it is sometimes easier to simply not agree to representation until your facts have been verified. I will say that it is a rare case but, it does April

6 Prospective Client Interviews happen. You should have a quality private investigator available for this purpose. Final Advice On Retaining A New Personal Injury Client Even if you are a newer attorney who is eager to retain cases, you should ALWAYS keep in mind that you are committing to a relationship that: (1) will have a significant [read months to sometimes years] time and energy commitment; and (2) needs to result in a "win-win" for both you and the client. You should never get the "hungry lawyer syndrome" and simply ignore "your gut feeling" about a client in the intake process. You should obtain all good and bad information about both the client and their case and make a rationale, educated decision as to whether both the client and their claim are a "good fit" for you and your practice. Steven M. Sweat is an award winning personal injury lawyer based in Los Angeles, CA with almost 20 years experience representing personal injury victims and their families. More information about him and his firm, Glotzer & Sweat LLP, can be found at TOP THREE WAYS TO KEEP YOUR CLIENT HAPPY AND AVOID MISUNDERSTANDINGS IN PERSONAL INJURY REPRESENTATION 1. Document Everything In Writing: There is an old saying in the law: "If it ain't written down, it never happened!" Beginning with the initial retainer agreement and going through the representation, any important communication between the attorney and client should be memorialized in writing. 2. Communicate Regularly With Your Client: The number one reason for legal malpractice claims and/or complaints to State Bar Associations is an alleged lack of communication between attorney and client. You should always get an address for your client at the intake stage and send regular status updates at least once a month, if not more, advising the client as to what you have done on the case, what you are doing and what you will do. 3. Under Sell and Over Deliver: Creating realistic expectations on the part of a personal injury client is crucial and starts with the initial consultation and goes through to the conclusion of the case. Always err on the side of caution when it comes to communicating time frames for final resolution and case value. When you come in under budget on time and over budget on value, you will be a hero! - Steven Sweat Advertisement April

7 Expert Testimony in PI Cases Having the Right Expert Testimony in Personal Injury Lawsuits By Michael Ehline Having the right expert in a personal injury case can make a tremendous difference in the outcome of the lawsuit. This is to say that an expert in a specific field is able to bring testimony to the case that may have a more dramatic impact than just the evidence alone. The most crucial aspect for personal injury attorneys is to have a clear understanding of the impact experts can have, by knowing the experts background and considering the correlation between various experts. Researching Your Expert s Qualifications and Credentials Knowing the expert s background is one of the most important aspects about using this person to assist in a lawsuit by providing testimony in their field. Questions that the attorney should ask about any given expert witness should include the following: Does this expert hold a degree in the relevant field about which they will be testifying? Do they have the proper qualifications or are they under-qualified to give significant testimony and withstand questioning by the defense attorneys? Is the expert over-qualified and/or able to provide opinions in more than one area? If they are, will this be an issue in the case and either create confusion with a jury or create appeal able issues if reviewed? Do they hold a professional license? If the expert holds a professional license, questions that should be considered before using their testimony include whether they passed their licensing test on the first attempt and if their license has ever been suspended, revoked or if they have allowed their license to lapse. They must also be asked if they have ever been disciplined by the licensing agency or group. What is their work experience in the field about which they will provide testimony? What are their professional affiliations? Have they testified in prior cases? If so, was it in the field they are qualified or a related field? Testifying as in expert in too many fields can detract from their expertise in one field during cross examination by making the expert appear as a knowing a little about many things, rather than being a specialist in one field. Has the expert published peer reviewed papers or articles in their field of expertise? If they have, it is essential for the attorney to know whether the text was generally accepted within their field or rejected. This is especially true if the paper or article was refused for publication. These are important facts the personal injury lawyer should know about an expert prior to using them for testimony to bolster their evidence in a case. Other issues the attorney should question include if the expert testifies for both plaintiffs and defendants and whether their testimony has ever been limited or excluded by a judge in a case. April

8 Expert Testimony in PI Cases Use of Experts in Pre-Trial Preparation The right expert can be important when preparing the lawsuit and in the initial stages of litigation, including discovery. In discussions with counsel in pre-trial preparation (including the early stages of investigation and litigation as well as preparation for deposition), the expert may have additional information that can be helpful to the case in the form of research, documentation, literature or facts of the present case that are inconsistent with what the defense experts have determined and other issues that can prove vitally important. Preparing for Direct and Cross Examination The expert is a cornerstone of a personal injury case and they must be impeccable in order to provide quality, direct testimony and standup during cross examination. The right expert can make the evidence the judge and jury hears and sees much more powerful. This can make the case easier to prevail on behalf of the attorney s client. Thorough review and preparation between attorney and expert should not be overlooked prior to using expert testimony in a lawsuit. No matter whether you are legal advocate for the plaintiff or defense, it is important to review the background of the expert and the work that expert has performed in the area they will be testifying. Both the opinions they have formed and the science that was used in arriving at these opinions, should be thoroughly discussed. Certain types of science can be questionable in court and it is wise to be prepared to that end. The analysis that led to the opinion is important to understand, since this is how the expert arrived at their opinion of the evidence at hand. When it is possible, it may be advisable to draw a parallel between various experts, in order to keep one expert s opinion from canceling out another expert s testimony. Using Your Expert to Prepare for Cross Examination of the Defense Witnesses beneficial for the attorney as an aid to preparing for depositions or trial. Such preparation may make the line of questioning more effective and result in a much better outcome in the case, since the expert has a unique perspective. They have the ability to make questioning both the defense lay witnesses and the opposing expert more impactful. A person specializing in certain aspects of the case can also determine when there are underlying facts that may be inconsistent with the opposing expert s analyses of the evidence. Summary The use of experts in a civil lawsuit is just as crucial as the use of experts in a criminal case in order to back the evidence up. It provides more of an impact and understanding for the judge and jury. It is the attorney s duty to protect the rights of a client in the best manner possible and using trained experts is one way of doing this that has proven effective. The most important part of using an individual specializing in certain areas is to ensure their background and past history in the specific area is impeccable. They will be cross examined and pitted head-to-head with the defense experts who may have as much or more experience in a certain field. The key to using experts to enhance a case is doing due diligence in checking out their credentials, preparing them to testify and using their advice during cross examination of the defense experts and lay witnesses. Michael Ehline is a personal injury attorney based in Los Angeles, California. For more information about him or his practice go to When the cross examination of defense witnesses begins, knowledge obtained from your expert can be extremely helpful in preparing for the questioning of these witnesses. Expert consultation, therefore, can be April

9 Depo Preparation for the Plaintiff Preparing Your Plaintiff (Client) in a Personal Injury Case by William W. Hurst I cannot stress enough how important deposition testimony is to achieving a favorable result in a personal injury case. It has been my experience that most cases are won or lost during the discovery process. The deposition testimony of your client in a personal injury claim is just as critical as the live testimony at trial. Both you (the attorney) and your client (the witness) must take the depositions seriously and both be adequately prepared for it! A bad Plaintiff s deposition may not lose your case, but it will certainly limit the damages that may be awarded. While lengthy books are written on this topic, I will attempt in this article to cover some of the highlights and share tips for those issues which are universal to all Plaintiffs depositions in accident cases. The attorney for the defense in his/her interrogation is assessing the Plaintiff and his/her demeanor and gathering relevant facts from the testimony; simultaneously, and more likely, he or she is also attempting to look for weaknesses in your case and, if possible, to create them. Shortly after the deposition the defense attorney will report to the insurance company regarding whether or not your client is a good witness or a bad witness, and will explain the strengths and weaknesses in his or her testimony. This will go a long way in determining what sort of settlement offer you receive prior to trial. The goal in preparing a client for deposition is to assist them in presenting themselves in the most favorable light as an honest, straightforward, likeable person who has been injured but is making the best of his disability and chronic pains. In other words, a person who the jury will like and want to help! In preparing your client, you must anticipate the defense attorney s strategies and tactics and cover at least some of the following points in detail with your client to be able to achieve this goal. Much is written on this topic and several writers (E.g. David Ball, propose that you should take as much as two or three days in preparing for this very important deposition. However, few busy lawyers have the time to do this! Only in the most complex lawsuits will Plaintiff s attorneys spend this amount of time with a client, but this is not practical for the run-of-the-mill auto case. We have developed several practical techniques to minimize the time needed to prepare the client. First, we require the attorneys in our office to be well prepared themselves in advance of the meeting with the client. This means that we will have obtained all of the client s medical records (including records for several years prior to the accident), a written chronological summary of these records as well as a chronology of all the medical expenses incurred as a result of the accident. In addition, we ll have and review the investigation (minimum of police report), and all prior statements, interrogatories and the like that may have been previously given or answered by the client. We will provide several of these documents in advance of the meeting to our client by mail along with a brochure explaining the deposition process. Once we ve April

10 Depo Preparation for the Plaintiff encouraged the client (by phone) to review these documents we will set the meeting. Client Meeting When meeting with our client, we will cover all the initial questions the client has about the deposition and provide a description of the procedure to help them become comfortable with the process. We have them watch a video obtained through the Indiana Trial Lawyers Association (most associations have video preparation DVDs) which has examples of questions and answers in an actual deposition which helps them understand what will occur and understand the importance of their testimony. Usually we know the attorney who is taking the deposition so we let them know what sort of a tactic he/she will take as far as his approach; i.e., is he a bully, or is he a warm and friendly person who uses this technique to catch the client off guard and elicit voluntary statements. We ll also have a discussion about their appearance and demeanor; i.e. being clean and neat to reflect that they take their case seriously. We then discuss some of the Do s and Don ts that mostly are contained in the video and discussed in part below. Specific glaring problems found in the records and documents, such as prior inconsistent statements, prior accidents and the like will be discussed in detail at that point in time. As we go through the various topics covered, we do practice questions and point out pitfalls or problems with the client s responses. Topics and Pitfalls (a) Client s Demeanor and Responses: The client must understand that for every question asked he/she must give a truthful, brief response without volunteering information. Clients who try to make/advocate their case or volunteer statements often leave themselves out on a limb. Doing this will give defense counsel opportunities to attack their testimony which they otherwise wouldn t have. (b) Anger: No matter how the client is treated during the course of the deposition, they must never get angry or argue with counsel. Juries expect an honest witness to be calm and polite. (c) Truthfulness: The client must always tell the truth. Those areas where the truth may be detrimental should be discussed with the client prior to the deposition to make a determination of how best to respond to that specific inquiry. (d) The Chummy Defense Counsel: Often defense counsel will be warm and friendly (I certainly use that tactic). This may catch your client off guard and cause him/her not to take seriously his deposition and make statements that are not in his best interest. Your client needs to understand that no matter how casual the deposition may seem, it is no different than testimony in Court and will be used against him if he does not give complete and honest testimony. He/she must give brief answers to the questions asked. If a question can be answered yes or no then that is the appropriate response! (e) The Incident: You must discuss the accident at length to make sure that the client s testimony and recollection are consistent with the investigative reports and the witness s prior statements. In automobile cases, time, space and speed are always critical issues and areas of inquiry. The client that is too precise in this regard may seem unreasonable, so we suggest that the client in most instances answer with ranges. However, if they do not know then simply letting the defense know that they do April

11 Depo Preparation for the Plaintiff not recall may be sufficient. By using estimates in ranges (speed, distance, time) the client won t be boxed into a specific number at the time of trial. For example, when asked a question regarding the speed of their vehicle most people don t know exactly how fast they were going at any specific time; so an example of an appropriate response to a speed question may be I was going somewhere around 30 to 40 mph which does not box in the Plaintiff. (f) Questions that Assume Facts That Are Untrue: Often opposing counsel will include several questions in one question and often one part of the question will suggest erroneous facts. When a compounded question is asked the client, he/she needs to be careful to break out and answer each of the questions separately (or request they be asked separately). The client s response must never incorporate erroneous facts! In other words the client must not let opposing counsel put words into his/her mouth! Deposing counsel often tries to do this by prefacing the question with the phrase Let me summarize your testimony or Is it a fair statement that and then set forth a summary of facts that if the client accepts or agrees with will box him in at trial. (g) Open Questions: An example of an open question is Tell me all you remember about the accident? or Tell me all the injuries you sustained in the accident? What the defense counsel is attempting is trying to freeze the testimony and again box the client in ; thereby limiting what the Plaintiff will be able to testify to at trial. The client should be advised to always leave their response open ended by saying something like At this time I can t remember other things, but I m sure there are some. (h) Disability Testimony: One question that is usually asked by defense counsel is What can you no longer do as a result of your injuries? These questions attempt to elicit an exaggeration by your client and destroy his/her credibility at the time of trial. It is well known that jurors like and want to help those people who help themselves! An example of a response that I find most favorable would be I do most things that I did before but now I pay a price or Sometimes I end up in bed or I just do them with pain and try to live with it. The jury may well find your client heroic and want to help him/her! (i) Phrases to Avoid: The client should never preface an answer with To tell the truth.. or Honestly.... This will give the jury the impression that some of the statements made are not honest or truthful. (j) Listen to the Question: Clients should listen closely and carefully and answer only the question asked. A pause before answering is the best solution, and never answer before counsel has finished his question. The client (if possible) should remain calm and if the possible answer is yes or no then say it because it prevents opposing counsel from fishing or getting voluntary incriminating information. (k) Pre-Existing Medical Conditions: This is a critical area of inquiry by defense counsel. You must cover accidents, injuries, and illnesses both prior and subsequent to the accident. Particularly if the injuries or illnesses are in the same physical area that the client now complains; i.e., historically and causally related. The defense always argues (and perhaps hires an expert to testify) that these events are really the culprit causing the problems which the Plaintiff is now suffering. Certainly if one injury/accident is forgotten by the client, the jury may think he or she is deceitful and your case is over. (l) Gaps in Treatment: Where there is a gap in medical treatment, the defense lawyer argues that something else must have occurred during that period of time to cause the pain to erupt and now disable or cause pain for the client or, in the alternative, that the client was not hurt much or he/she would have gone to a physician. There are usually explanations for gaps such as financial problems (no insurance) and other things in life getting in the way of treatment. Often the treating physician has run out of options and has advised the client that he/she should try to live with it and take meds! In any event, reasonable explanations need to be made. (m) Damages: You must discuss how this accident has changed your client s life (for example, a job change), the extent of pain they suffered (constant/periodic) and how this has affected their ability to enjoy their life. This is a tricky area because juries do not like whiners. As stated, it s the person who does everything he did before or attempts to do everything he did in the past but suffers as a result who is usually a person the jurors like. April

12 Depo Preparation for the Plaintiff (n) Facebook and Social Media: It is important to determine what he/she has written on Facebook (etc.) regarding their activities before and after the accident. In almost every case currently we re seeing requests for Facebook pages and other social media. If your client has made comments about the accident or posted videos and pictures of activities this should be reviewed. (o) Facts That May Embarrass the Client: In some cases we may run a criminal background check on our own client to make sure they re honest and forthright with regard to any convictions they may have. Indiana, like most states, limits admissibility of convictions to crimes of deceit or dishonesty. Often there are medical issues which may embarrass the client and you must be prepared to object and perhaps instruct your client not to answer irrelevant embarrassing events. (p) Client Makes a Mistake: So what do you do if your client makes a mistake in a deposition, forgets some fact or perhaps simply gets it wrong as a result of the passage of time? We ask for signatures for the deposition prior to filing with the Court and under Indiana law changes can be made (errata sheet) for those matters which must be changed. I do find, however, that the fewer changes you make the better and only significant failures in testimony should be changed. Conclusion Hopefully by spending time with your client and covering these topics (as well as many others), your client will become a capable, confident witness; i.e., someone who knows what he or she is talking about. Sometimes no matter the effort made to prepare, some people simply think they know better than you how to handle their deposition and be a good witness. This is the client that is most difficult to prepare. Often clients who I thought would do a great job revert to their old ways, trying to advocate their case and doing all the things that they have been instructed not to do. In every instance where this has occurred, the client damaged his/her case and caused issues for trial that never should have had to be dealt with in order to bring the case to a jury. Nevertheless, most clients listen to this advice and thorough preparation for their deposition is time well spent. William Bill Hurst is an award winning Personal injury trial lawyer based in Indianapolis, Indiana. More information about his firm and practice can be found at Advertisement George Aldrich & Associates: Serving all of North-Central California from Petaluma to Mendocino including Chico to Redding and Eureka and all parts in between. Dedicated to serving victims of catastrophic accidents and injuries and the families of wrongful death victims. George Aldrich & Associates 375 South Main Street, Suite A Lakeport, CA, (707) April

13 Defense Doctor Cross Examination Tips Cross Examination of the Defense Doctor - 5 Fool Proof Tips by Anthony Castelli I n personal injury claims in Ohio, and most other states, the defendant normally has the right to have the injured person who is bringing the lawsuit examined by a doctor of their choice. The typical case is usually a car accident claim. The defense will have their own doctor give opinions either on causation or the nature and extent of the injury. The defense doctor may give an opinion that the injuries the treating doctor diagnosed were not caused by the car accident or they may testify that the person healed up from the car accident within a short period of time, while your claim is that the plaintiff is permanently injured. The intent of this article is to give plaintiff's bodily injury counsel my 5 favorite lines of attack on the defense doctor. Please note I call these defense medical exams. The defendant will try to characterize them as "independent" medical exams. If you don't do anything else, make it abundantly clear that the doctor was hired by the defense attorney, has been hired before by this defense attorney and by many others, and has a financial interest to testify unfavorably to your client. It also goes without saying that you should use leading questions as much as possible although sometimes you can venture out in areas where you cannot be hurt. These would be collateral matters such as pecuniary interest. 1. Bias and Prejudice of the Medical Specialist There are two types of bias that I attack as follows: One is the actual relationship between the defense doctor and the attorney. The other is the general pecuniary interest that the defense doctor has to be a defense doctor and testify unfavorably to your client. A. The defense attorney's personal relationship with the defense medical expert: This is the most powerful weapon in your arsenal. If you can show the defense lawyer or other members of his firm have used this doctor in the past, you have the argument that this Doctor is the defense attorney's "go to guy". In the vernacular, the doctor is the defense lawyer's "homeboy". You can research this yourself through your own list serves or through court reporting agencies. It is also the proper subject of interrogatories. A step better is to order 4-5 prior deposition transcripts, if possible. You may find that in every case the doctor said the injury healed up. So your line of questioning may be as follows: 1. You were retained by Mr. Defense Lawyer in this case? 2. You were asked to give opinions about this case? 3. You knew that if necessary the defense attorney would call you as a witness? 4. How many times has the defense attorney requested you give a opinion about the person injured? 5. How many times have you been hired by x, y, z, the other members of his firm in prior cases? 6. You've testified or written reports in the past for defense counsel in contradiction to the plaintiff's own doctor that the injury was not caused by the accident, right? 7. You've testified in other cases for Mr. Defense Lawyer that the injury was much smaller than what the plaintiff's own doctor has described, haven't you? B. Hoist Defense Counsel on His Own Pittard : It arises when defense counsel is asked to reveal their medical experts lists (4-5 names) (i.e. "the usual suspects"), but this list goes out at a time when none of them have ever been contacted about the case. The list includes the doctor that was ultimately sent the April

14 Defense Doctor Cross Examination Tips records and examined the plaintiff. Even better if the defense attorney noticed the doctor for the trial deposition, before they were ever contacted by the defense doctor. 1. Dr. were you aware that Mr. Defense attorney listed you as a witness on March 31, 2013? 2. Dr. were you aware that Mr. Defense attorney filed with the Court a notice to take your deposition back on May 13, 2013? 3. But the letter in your file where Mr. Defense attorney retained you was sent to you on July 21st, 2013, wasn't it? 4. And you never saw the plaintiff until August 21st 2013 did you? 5. So, in other words, you were listed as a witness before you knew anything about this case, weren't you? 6. So, based upon this information, Mr. Defense attorney was counting on you to be a witness in this case before you ever knew anything about it? 7. Do you think that if every time you saw an injured plaintiff you related all their injuries to the accident in question you would get much business from defense lawyers? C. General Pecuniary Interest as a Defense Medical Examiner Many defense medical examiners have made a lucrative business of providing reports to the defense attorneys and the insurance industry. Their bias to write reports favorable to the defense is driven by their own self-interest to make money. After all, if they relate the plaintiff's injuries to the accident or at least do not minimize them, the defense attorney will soon stop using them. So a line of questioning in this area is necessary to expose their bias towards finding little if anything wrong with the plaintiff. You should try to demand production or subpoena financial records beforehand and here are a few questions that you can use as follows: 1. Dr., is it fair to say that you have examined thousands of people that had injuries from car accidents at the request of defense attorneys? 2. How many times have you done examinations on behalf of insurance companies over the last 10 years? 3. How many defense examinations have you performed over the last year? 4. How many examinations have you performed in the last 60 days? How much do you charge for each examination? 5. Do you always submit a report of your examination to the defense lawyer? 6. Do you call the defense attorney ahead of time if you cannot submit a favorable report? 7. How many defense depositions have you done for defense lawyers over the last 10 years? 8. How many depositions have you done for defense attorneys over the last year? 9. Do you charge for your time on an hourly basis? 10. Do you also review medical records defense attorneys send to you? 11. How often do you review records? 12. How many hours per week over the past year have you reviewed records, examined patients, or given depositions for defense attorneys? 13. How much do you charge on an hourly basis for defense work? 14. If you know the doctor advertises, ask if he or she actually advertises for business for defense medical examinations. April

15 Defense Doctor Cross Examination Tips 15. If my math is correct you did 52 exams last year, spending roughly 4 hours per case review at $500 per hour that s $104,000, is that right? 2. Use The Doctor's Report to Keep Him Honest You always want to review the doctor's report with a fine tooth comb. Every once in a while, they will miss something or leave something out the defense wanted in the report. If the defense lawyer asks about such issues in a deposition or trial, you need to be ready point out that the doctor did not put this in his report. Examples: 1. Dr., you prepared a report of your findings and opinions about this case? 2. You included everything that you thought was important? 3. You answered all the defense questions fully and completely? 4. You did not mention in your report that my client did not have a herniated disc. 3. Use The Dr's Report and Records He Reviewed To Try Your Case The doctor will have been provided records by the defense attorney of your client's treatment. He will list his review of the records. Be sure to include all the objective evidence in the records, and the causal relationships found. Go down in chronological order and point out day by day your client's complaints. Ask the doctor to describe what certain medications are prescribed for those conditions, which the records show your client took. If the doctor conceded some injury in the report, get him to repeat it. 4. Use The Learned Treatise To Impeach The Doctor If you can find where the doctor wrote favorably on the issue at hand, use that to impeach him. Chances are you will not find anything, so find an authoritative piece of literature that supports your case. If your own Doctor or the defense doctor relied on it or agrees it is authoritative (at least in my state of Ohio) you are allowed to cross examine the doctor on it and read it into evidence (Source). Learned Treatises: To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. 5. My Favorite Learned Treatise: The AMA Guidelines To The Evaluation of Permanent Impairment Most examiners will acknowledge these AMA guidelines are authoritative. They may even cite to them in their report. I believe we are on the 6th edition. My favorite part to quote is out of the 5th edition at page 566: Pain is subjective. Its presence cannot be readily validated or objectively measured. Physicians are confronted with ambiguity as they attempt to assess the severity and significance of chronic pain in their patients. In large part, this stems from the fundamental divide between a person who suffers pain and the observer who attempts to understand the suffering. Observers tend to view complaints with suspicion and disbelief akin to complains of dizziness, fatigue and malaise. As Scarry remarked, to have great pain, is to have certainty, to hear that another person has pain, is to have doubt. "Doctor, do you agree with that statement?" Who really cares what he says? One doctor said to me, "No I disagree. That's not impressive." He really was not a pompous doctor, but it sure came off as unfeeling! Anthony Castelli is an established personal injury and disability attorney based in Cincinnati, Ohio. You can find more information about him at April

16 Written Discovery Tactics Winning Your Personal Injury Case With Written Discovery Tactics by Jonathan Rosenfeld With most medical negligence or personal injury cases, you will probably find that you do not have everything you need to establish the elements necessary to win your case. The formal process by which you obtain information, access, and documents from your adversary is commonly called discovery. The 4 core methods of discovery are depositions, requests to admit, interrogatories, and requests to produce. The first, depositions, occur when both sides meet to ask and answer questions under oath. The last three are written exchanges between both parties. Under either method of discovery used in civil cases, litigants are generally entitled to anything that is relevant to the case unless it is privileged. Things that are generally related and not privileged include what witnesses to the matter observed, identities of people with knowledge of the issue, documents with information related to the case, and the general background of witnesses and other parties. Of course, while the leeway granted to obtain information is considerable, it is not limitless. Normally, parties cannot obtain confidential communications (such as spousal, legal, religious, or medical conversations); additionally, when seeking information about third parties, lawyers must make a strong showing of need because courts do not want to invade the private lives of non-litigants without a strong showing of cause. Finally, even if a court allows for discovery in certain situations, it might require that it stay within the confines of the court and prohibit anyone from leaking information to the public. At all times, counsel for both sides must act reasonably when demanding or complying with discovery. If any dispute arises, the judge will rule on the reasonableness of either side. Therefore, when articulating your written discovery documents, it is crucial to tailor them to the facts and circumstances of the case in order to get the most useful information and to avoid running afoul of the law. This article will introduce you to the common elements of these methods to give you an understanding of the needs they demand. Requests to Admit At the onset of the discovery process, it is crucial to effectively draft requests to admit. These are written questions served upon the other party. They must respond under oath if the statements are true, false, or whether they do not have enough information to answer. These must be well written in order to sharpen the focus of your claim, get rid of irrelevant issues, and gather the information necessary to prove your case. According to Illinois Supreme Court Rule 216 (obviously this article is written from the perspective of an Illinois attorney, but most states have similar discovery laws), each party can only ask 30 separate requests for admission, unless both sides agree to a different number, and they must make these requests separate and apart from any other discovery method. On the other side, respondents have only 28 days to answer each question. (Note, in federal court, litigants are not limited to any amount of requests for admission and are given 30 days to respond). If they fail to respond within that time frame, then each question is deemed to be true. Generally, parties can only ask for facts, an application of law to a April

17 Written Discovery Tactics set of facts, or to vouch for the genuineness of a document. For example, in an auto accident, the plaintiff might want to ask the defendants if they were insured at the time of the accident or if the injuries that resulted were a consequence of the defendants actions? Interrogatories: Written Questions Where Creativity Is Key Interrogatories are one of the most effective forms of discovery. They are a set of written questions that one party in a lawsuit sends another to be answered under oath. Illinois Rule 213 limits the number of interrogatories to approximately 30, and gives the responding party 28 days to answer. In federal court, Civil Procedure Rule 33 affords 25 questions and gives the answering party 30 days to respond. Importantly, answers to interrogatories can be used exactly as answers to depositions. Therefore, crafting the questions and answers is very important, because any errors or omissions will resurface later at trial. Typically, they are used to elicit information and shape the course of litigation. For example, if you were struck by a drunk driver while walking to work one day, helpful interrogatories might touch upon some of the following issues: 1. how much the driver had had to drink in the preceding 24 hours; and 2. what type of car the driver owned and if he or she was in it at the time of the accident. As can be seen, interrogatories are normally meant to get opposing parties to admit information or contradict themselves in later testimony. So, they must be finely tailored to the facts and circumstances of the case and not transplanted from a generic list of questions. If they are not, opposing counsel will object (and probably win) on grounds such as irrelevance, vagueness, ambiguousness, or undue burden. Therefore, it is imperative that your lawyer works with you to create a carefully customized set of interrogatories that are designed to gather the most relevant and useful information for your case. Requests to Produce Requests to produce are also another common discovery method. These are used to obtain relevant documents or to inspect places or things related to the case. For example, a plaintiff in auto incident would request the insurance policy of the defendant, the amount of the policy, and the expiration of the policy. Unless mandatory disclosure is required, or parties agree to a different schedule, Illinois Supreme Court Rule 214 gives the recipient 28 days to present the documents, allow for an inspection, or object on legitimate grounds. If they do comply with the request, they must produce all materials as they are kept in the usual course of business, and categorically organize them as they were requested. Of course, a party can always object to divulging documents; however, if they fail to object to any specific request, they must comply and produce the information. When refusing to produce, parties must explicitly declare what item they are not producing and on what grounds they are refusing to do so. Typical reasons for declining to give documents or allow for inspection include the following: attorney work product doctrine, privilege, irrelevance, overly broad, unduly burdensome, lack of specificity, or a claim that the documents or things requested are not in their control. In Illinois, after all production has been processed, parties must attest under oath by affidavit stating the extent to which they complied with the request. Note: this certification is not required in federal jurisdictions. On the other hand, Federal Rule of Civil Procedure 26 requires a significant amount of disclosure from both sides as to documents and information available for discovery, regardless of whether either side demands it. Federal rules also place more stringent demands on preservation and transfer of electronically stored information. However, both jurisdictions require parties to update their answers to production requests as new information comes to light. Conclusion Written discovery requests can go a long way to establishing basic facts related to liability and damages in a personal injury claim. They can also serve to tailor the number of issues that must be proven up at the time of trial of an accident claim. Through carefully worded requests and questions, a lot of information can come to light that assists the injured party in proving up their case or in narrowing issues in dispute and allowing for better settlement negotiations. Jonathan Rosenfeld is the managing attorney at Rosenfeld Injury Lawyers in Chicago, Illinois. Mr. Rosenfeld's practice is focused on the representation of individuals in personal injury and wrongful death matters. Mr. Rosenfeld would like to thank William O'Brien, a law student at Chicago-Kent College of Law for his assistance with this paper. April