Short Trial Experience

In the event that you have never attended a short trial, you may be interested in reading this Blog. Two auto Insurance company adjusters attended this trial and stayed from beginning to end, and the ADR Commissioner also visited the courtroom.

One issue that came up during the trial was what I was allowed to comment on concerning my client’s medical records in closing arguments. The judge ruled that I could not comment on what the results of my client’s positive orthopedic tests for meant, because no explanation of what a positive result on those tests was stated in his records. For example, on the initial exam had a positive Soto-Hall test, which would indicate that cervical nerve root compression was present. And, he had a positive Kemps bilaterally, which would indicate facet joint involvement. The judge determined that, if I were allowed to make those comments, that I would allow me to render an expert opinion. I argued to the judge that it doesn’t make sense that, if something is in evidence, that I can’t comment on what it means. In the event that my comments are erroneous, then defense counsel can make an objection, or he can tell the jury that I am wrong, and that positive test result indicates something else. The Short Trial Judge did allow me to comment on the difference between sprains and strains, because this would be within the common knowledge of most people.

I was also not allowed to comment on purpose of therapies utilized on my client. For example, I was not allowed to comment that chiropractic manipulation is used was to correct structural misalignment and reduce scar tissue formation to help to promote prevent chronic conditions from occurring. I was not allowed to comment that the purpose of heat and cold were to bring blood flow to the injured tissues to promote healing, or that the purpose of ultrasound was to relax muscles and thus reduce pain. I could not comment that the purpose of electrical stimulation was to reduce muscle spasm and thus reduce pain. I was not permitted to comment on any of this at trial because these explanations did not appear in my client’s medical records.

If medical providers would add this information to their records, this would be of tremendous help to attorneys who do short trials, because the damages claimed in these cases do not justify the expense of calling medical experts.

One big problem in the case was the one provider would not cooperate in signing a Declaration like another provider did. We sent a declaration to this provider’ office three times. We had multiple calls to that facility that fell upon deaf ears. His bill for one visit was $1,330.00 was the subject of a huge amount of comment by the defense during the trial. Since I had no declaration from this provider, I am sure that the jury severely discounted his bill. This made a low impact case even more difficult. Hopefully, the physicians that I use in the future will understand the importance of including a statement that their charges are reasonable and customary, and their treatment was medically necessary as a result of the patient’s accident-related injuries. Perhaps if any personal injury providers are reading this blog you can modify your record keeping procedures on your auto injury patients. We all need to work together to coordinate our efforts in combat against the insurance companies on low-impact auto accident cases.

Another issue came up during this trial was that my client was sent to a pharmacy that provided medications on a lien. One of the plaintiff’s prescribed medications was Voltaren Gel 1% (Diclofenac Sodium) (five tubes at 10 grams per tube) and another was Naproxen, which the defense argued was simply over the counter Ibuprofen. Needless to say, the charges for these prescriptions were high, because they were provided on a lien. While we were waiting for the during jury deliberations one of he topic of conversation that came up in the courtroom was, what is a reasonable and customary charge for medical services these days? Prices for medical services are all over the board. The conclusion is that nobody knows for sure, yet the legal system leaves that determination to the trier of fact.

On this case, I had to respond to written discovery, attend my client’s deposition, write an arbitration brief, participate in an arbitration hearing and, go through all the preparation that is associated with a short trial. We were in the courthouse for eight hours, and I had generate all of the post-trial motions. This preceding list does not include the preparation time involved with all of these legal matters as well as the time involved with pre-litigation matters.

I completed this short trial on June 9, 2017. The jury verdict was $3,645.00 for medical specials and $1,700 for pain and suffering. The total was $5,345.00. My client’s medical specials were $6,080.00. This was a low impact case. We had no offers pre-litigation. On post-trial motions I was granted costs, which included the short trial judges fee, prejudgment interest, and attorney’s fees were granted for less than one-third of the amount of the jury verdict. As I previously mentioned, we were in the courthouse for eight hours. I had sufficient time on this short trial, so that if I were billing for at a rate of $100.00 per hour (a very low rate these days), that I would be entitled to a maximum award of attorney’s fees of $3,000.00. I really thought that I deserved a maximum attorney fee of $3,000.00, however he short trial saw it differently, and he decided that my time was worth a lot less.

We all need to get up in the morning and make our beds. This means that little things, like a short trial can make a big contribution to the life of an injured low-impact auto accident victim. It can also make some minor positive impact overall in the bizarre insurance world of low-impact-auto-injury-accidents. This trial won’t produce a make a large ripple effect within insurance industry, just because the adjusters that sat through it, and reported back to their supervisors on the outcome. They probably reported that they won this battle by using up my time. However, this trial did nothing to reduce my motivation and spirit to continue on in the battlefield of low impact auto accident cases.

This entry was posted on Wednesday, December 20th, 2017 at 10:15 am and is filed under auto accidents, bodily injury, Jury/Juries, personal injury, personal injury attorney. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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