Archive for the ‘Trial’ Category

How Can a Juror Tell Which Side to Believe?

The standard of proof in a civil case is “preponderance of evidence” or “more likely so that  not so”. 51 % of the weight of evidence is sufficient proof for a plaintiff, counter-claimant, cross-claimant or third-party claimant to prevail in a civil case.  Jurors sometimes confuse the civil standard with the criminal case standard of proof  which is “beyond a reasonable doubt”, a much higher standard.  Attorneys must always take efforts to explain the “preponderance of evidence”  standard of proof to the jurors in their opening statements and closing arguments in civil cases.

Scales of Justice

So, how can civil jurors to determine which side is telling the truth?

You’ve heard the adage that there are two sides to every story. Two-party civil cases come to trial because both sides think that their side has the more credible of the two stories. These civil jury trials invariably have two opposing sides. Jurors can tell the strengths and weaknesses of a party’s case by closely listening to the closing arguments of each attorney. The goal of all closing arguments is persuasiveness. The battle between the two sides during closing arguments sometimes results in an attorney arguing that the evidence favors only one side and no alternatives are available. These one-sided arguments never address and refute the opposing view.where to purchase commercial jumping castle

Two-sided arguments address and refute each of the opposition’s points. If a juror is confronted with a one-sided closing argument, he should generally distrust the messenger. A one-sided argument avoids drawing attention to the weaknesses of that side’s case. Logically, a one-sided argument should weaken a presentation. So why would an attorney choose to utilize a one-sided point of view in closing argument?

One-sided arguments are used because the attorney feels that the jury panel is already sympathetic to his case, or because that the attorney has attractive facts on his side. The third reason for utilizing a one-sided closing argument is because the attorney feels that the jury panel is comprised of jurors who are unsophisticated or uneducated in the technical issues that are involved with the case. If the jurors are fall in this category, the attorney may decide to make his presentation simple and easy to understand. The rationale is that a two-sided argument will confuse the jurors in these types of cases. When jurors get confused by one side’s presentation, they tend to vote in favor of the opposite side.

In reality, persuasiveness increases when the opposition’s points can be systematically refuted. If an attorney brings up the opposing arguments and then shoots them down, this should logically bolster the attorney’s credibility. No matter how eloquent the attorney’s presentation may be, if the attorney is using a one-sided closing argument, a juror has the option of discounting his message and look for the reason that he is not countering the other side’s arguments.

Personal Injury – What Has Changed in the Last 30 Years

I started working on personal injury cases prior to going to law school.  I have witnessed many changes in the insurance industry, the law, and  attorney advertising  that have impacted  personal injury claims over the years.  I have argued many cases before the Nevada Supreme Court that have created new case law on automobile insurance.  I have witnessed the implementation of the arbitration and the short trial and mediation programs, which have made Alternative Dispute Resolution a viable alternative to jury trials in resolving Personal Injury cases in the state of Nevada.

I can remember a time, after I was admitted to the Nevada bar, when Arbitration was never used,  and all contested personal injury cases were  resolved through normal litigation.  Alternative Dispute Resolution was seldom used to resolve any personal injury case.  These cases either settled or proceeded to trial.

When the cap on statutory arbitration was raised to $15,000.00, personal injury attorneys  started using the Arbitration statute in an attempt to resolve smaller personal injury cases.  Then came the court annexed mandatory arbitration program.  The cap on court annexed arbitration was raised eventually to $25,000.00 and then to $40,000.00, and arbitration is now mandatory and non-binding for all cases with damages of under $50,000.00.

I was a member of the Nevada Supreme Court Advisory Committee for the short trial program. I tried the first case in the short trial program that used a Pro Tempore Judge (Senior Judges handled the first few cases that were tried in this program).  The short trial program in Nevada is certainly  working and has a high resolution rate. Some insurance defense attorneys still insist on exempting cases from the short trial program.  Now, most short trial cases settle before they ever get to trial.  I had one short trial in 2011that settled the morning of the trial in the courtroom.   All short trials that I had set for trial in 2011 settled.water slides for sale

In the last 10 years, I started using Mediation to resolve cases.  I learned that, if you do your homework ahead of time and determine what deals that you can make with health insurance companies and providers on their liens before the mediation hearing, you can give your client a  an accurate estimate of what they will net on any mediation offer. This greatly increases the probability that a case will settle as a result of the mediation hearing. All cases that I had set for conventional trial in 2011 settled as a result of mediation.Inflatable Obstacle Course

Alternative dispute resolution is definitely the way to go on PI cases under $50,000.00, and mediation is the way to go on cases over $50,000.00.

The medical management of musculoskeletal injuries has also evolved in the last 30 years.

Over the years, there have been medical tests, like diagnostic utrasound, which attempted to diagnose musculoskeletal injuries that had a short life span. I have seen the evolution of pain management as a method of treating spinal injuries.  The cost of pain management is very high. It has changed the personal injury business tremendously.  We now have plasma rich protein injections (PRP) to promote the healing of joint injuries and digital motion x-rays and prolo injections to diagnose and treat  ligamentous injuries of the spine. There are even a few  Laser therapy facilities here in Las Vegas. Discograms are now the litmus test for diagnosing the integrity of an intervertebral disc prior to spinal to surgery.  I am sure that new medical procedures and techniques will be applied in the future to help us to diagnose and treat neck and back  injuries.

Jury trials on personal injury cases have become really expensive.  On a recent case I had an expert charge for an IME and then billed $3,000.00 per inch for his review medical records.  Then he billed for deposition preparation on a deposition that was set by the defense.  We pay these fees because we have no choice. That case settled in mediation, so I was reimbursed for these advanced expenses. The costs for expert fees have been going out of control. I had one medical expert tell me that one large personal injury firm in town reserves his time for  a week prior to trial, and they pay him to close down his office so that he can participate in trial preparation.  Most personal injury firms can’t afford to pay these expert fees.  We need to get experts to accept more reasonable fees.  I have learned that everything is negotiable, so I try to negotiate with experts on their fees in the interest of helping my clients.

Over the years I have learned that auto accident victims with soft tissue spinal injuries don’t get adequate compensation, especially the ones that have been involved in multiple accidents and/or so-called low property damage accidents.  Over time a degenerative process occurs from these old spinal injuries; and,  in many cases, the victim’s spinal condition becomes chronic and eventually they need spinal surgery.

Many clients overdose and die from narcotic pain medications and muscle relaxers, or from the complications associated with their use.  Many clients become addicted.  Long term use of non-steroidal anti-inflammatory medications will cause kidney disease. These are attendant complications of drug use for which insurance companies give no compensation or consideration whatsoever. This needs to change.

Insurance companies have forced claims into litigation on what they determine are low impact cases.  Many attorneys don’t take these claims.  By experience I do know absolutely that victims do get injured in these accidents, sometimes seriously. Some require spinal surgery. Nobody that has been involved in the personal injury business for any length of time can  legitimately take the position that people don’t get hurt in these accidents.  These are usually time consuming and low profit cases. Juries don’t like these cases. Insurance defense attorneys like to take them to trial because they are easy to defend.  We need to keep fighting for our clients on these cases.

We now have attorney advertising which promises immediate compensation.  What is not disclosed in these commercials is that the compensation comes from a loan with a minimum interest rate of at least 40% per year (and perhaps as high as 150% per year), when you factor in what are called “administrative costs.”   On an loan of $500.00 from an NJA approved lender, the client owes  $799.00 after just one year. Other rates are higher. I know of one case that on  the  original loan request of $50,000, the lender loaned  $100,000.00, and the loan balance soared past a million dollars in a few years.  The available insurance is $1,000.000.00 and several medical providers seek compensation for the care they gave to the injured client. The settlement funds will, eventually, be distributed by Court Order.

Many people have heard that a case’ value is “three times the medical bills” That may have been true in the past in some cases. Now one major insurance carrier in Las Vegas is only offering 1.3 to 1.5 times the medical bills on good cases. They defend  their cases with in house counsel to save legal fees. We need to raise this standard of compensation so that victims of personal injury accidents are fairly compensated for the injuries caused by negligent drivers.

What I see in the personal injury field is that large advertising firms won’t reduce their fee to settle a case, but they want providers to take a considerable reduction to promote settlement.   These firms don’t disclose their fees during the settlement negotiations.  I’m for full disclosure. If an attorney is going to ask a provider to cut it is only fair that it only fair that the attorney be willing to take a commensurate cut on his fees.

If  you’re in this business long enough, issues will come up from past cases that take up a lot of your time.  Even though providers are paid, years later  later you will get monies owed statements or status requests that you have to deal with. Occasionally, accounting mistakes are made.  So, you must give proof  to the provider that they were paid.  This takes up lot time. The longer that you are in this business, the more of these types of errors you receive.  That’s why we need to keep good accounting records – so, administrative problems on personal injury cases can be handled without problems or inconvenience to the clients.

We need to keep our hard files for 7 years from the time that the case closes.    This is a big expense.  You need a storage facility that is usually not at the same location as your office.  You need an indexing and retrieval system.  Retrieval issues come up quite often. This involves a tremendous ongoing time and expense.  Then after the seven years you have to shred these closed files. I think that the bar needs to revisit their storage requirements.  Perhaps our rules can be changed by our legislature, so that we can include these ongoing expenses as  costs to the prevailing party after litigation.

Now we have to deal with stricter requirements when there are actual or potential Medicare liens.  This is also taking up much of our time.  I have one case that has been pending for years.  It was a food poisoning case. The client died. So the case settled a year and a half ago and after the Final Detail Settlement form was sent in, we received a new lien.  We had previously  received a new no claims paid letter. The new lien  came back listing tens of thousands of dollars of  physical therapy bills.  Of course, you don’t get physical therapy for food poisoning.  Anyway, this had to be appealed leaving this case undone. And after we get that resolved, the Probate case also  has to be closed.  Does the reduction that you receive on the Medicare lien compensate the attorney for all this time involvement? The federal government should have a vehicle for reporting these war stories.

How about our minimum automobile liability limits of $15,000.00 per person / $30,000.00 per incident?  Isn’t this a ridiculously low limit for financial responsibility. Most people these days can’t afford uninsured motorists or underinsurance coverage.  Car accidents can definitely can be life changers.  The adverse driver can extinguish your claim in bankruptcy.  Even our personal injury clients are filing Bankruptcy because of the current downturn of our economy.   Are personal injury claims really an  exemption in Bankruptcy?  Extra work is needed when any party files for bankruptcy.  It’s part of the system, but takes up many hours and, sometimes, even Court appearances in Federal Bankruptcy Court. You really earn your fee on these bankruptcy involved personal injury cases.  We need to raise the financial responsibility limits in Nevada as was recently attempted by some in the State Legislature.

One lesson that I have learned over the years  is that you should always be honest and give full disclosures.  Don’t hide anything.  Don’t try to take advantage of anyone. Know where the line of ethical responsibility is and don’t cross it. Try to know if you have a bad case early on.  Get the facts so that you can evaluate the value of the case for settlement purposes and let the client know if there are issues with the case that will affect its value form the beginning.  Don’t cross the line of ethical responsibility just to win a case.

Today, the big advertisers aren’t trying personal injury cases.  Their litigation cases are referred to litigation groups perhaps without the actual knowledge or consent of the clients.  When was the last time that you saw any “heavy hitter” or “immediate compensation” attorney in courtroom?  The theory is that if you have enough cases, you don’t need to go to court: you can get  someone else to do that for you. We need to change this advertising.  If a  fee agreement is executed, the attorney should not be able to transfer the case to someone else for litigation without giving up his contingency fee.  I don’t like this change. It gives us all a bad reputation.

These are only a few of the changes that I have noticed  in the management and prosecution  of personal injury cases in the last 30 years.  I will cover more of these changes in another posting.

When Does a Treating Physician become an Expert Witness in a Personal Injury Case?

Recently, I reviewed a Federal  case that was posted on the Nevada Justice Association list-serve.  This 9th Circuit case interpreted Arizona law regarding the testimony of treating physicians. This decision answers the question:  When does a treating physician’s testimony morph him into an witnesses hired to render expert opinions? If a treating physician renders opinions that go beyond the usual scope of a treating doctor’s testimony, the proponent of the testimony must comply with FRCP 26 (a) (2), which requires a full-fledged expert report stating opinions and the bases for those opinions.

A treating physician is not considered an expert to render expert opinions when his testimony is confined his examination, diagnosis and prognosis of the patient. That testimony is not considered specially retained expert opinion.  But, once the lawyer for the claimant undertakes to elicit an opinion from the physician concerning whether or not a particular traumatic event caused the condition, as opposed to another cause, the physician has been transformed into the type of expert envisioned by the report requirement of FRCP 26.

Treating physicians are often confused about the difference between their role as a  treating physician and their role as an expert witness.

An expert witness is one retained to provide expert testimony in a case.  Generally, the treating physicians are excused from the requirement of this procedural rule requiring a party to timely disclose an exert witness.  A treating doctor may be provided with additional documentation by plaintiff’s counsel.  He may be asked to opine on matters outside the scope of treatment that he provided.  This may involve rendering opinions on the medical care rendered by other physicians.

Physicians are allowed to testify to opinions they formed in the course of caring for the patient.  As soon as the treating physician reviews bills and records outside of what is normally in their file, they become a hybrid expert.

The 7th circuit recently held that a treating physician, who is offered to provide expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in he course of providing treatment, is required to submit an expert report under FRCP 26(a) (2). The 8th Circuit requires the disclosure of a written report at any time a party seeks to have a treating physician testify concerning the causation of a medial condition, as opposed to merely the existence of a medical condition.

Therefore, it appears that a treating physicians are only exempt from the written report requirement when their opinions are confined to their  course of treatment of the patient.

The Nevada Rules of Civil Procedure provide for  expert disclosure dates deadlines for the exchange of initial expert disclosures.  Rebuttal disclosures are usually due 30 days  after the initial expert disclosure deadline.  Failure to meet these deadlines can be fatal to personal injury case.

So, the treating physician should always assume that his written report will be required in any normal litigation case.  Normal litigation involves those cases that are exempted from arbitration program, and involve damages in excess of $50,000.00.

In Nevada, in cases where damages have a value of $50,000.00 or under,  go first go into the mandatory Court Annexed Arbitration program.  If either side appeals, (assuming no exemption),  the case then automatically goes into the short trial program (one day trial). Although a report may not be essential in an arbitration or short trial case, a  report can be entered as evidence in the arbitration/short trial, and the physician does not need to testify.

If the case involves emergent care, chiropractic treatment or physical therapy, diagnostic testing and  treatment by a M.D. or a D.O., then the M.D. or the D.O. in heir discharge report should comment on causation,  the medical necessity of treatment of all of the patient’s providers, as well as and the reasonable and customary nature of the charges of all providers.

NRCP 16.1 requires the expert report to contain a complete statement of all opinions of the expert,  the basis and reasons for his opinions, the data or other information considered by the expert in forming his opinions, any exhibits or information that he reviewed to support his opinions, the qualifications of the expert, including a list of all publications authored by the expert within the preceding 10 years, the compensation to be paid for his review and testimony, and a list of other cases in which the witness testified as an expert at trial or by deposition, within the preceding four years.

Therefore, a treating physician’s perfect discharge report should cover the physician’s opinions concerning the causation of the patient’s injury (stated to a reasonable degree of medical probability), the medical necessity of the patient’s treatment and the reasonable and customary nature of the charges for all of the patient’s medical treatment. All physicians that are involved with treating  personal injury victims should have a current CV, testimony list, and fee schedule prepared for use in litigation cases.jumping castle store

Therefore, in most personal injury cases involving litigation, the treating physician will be considered to be  at least a hybrid expert. Treating physicians should look at the format for their narrative and discharge reports to see if it meets all of the requirements of an expert report as stated in this blog.

Jury Trials On Personal Injury Automobile Accident Cases

The right to jury trial arises by statute.  In most jurisdictions, where the value in controversy exceeds a certain dollar amount, the right to jury trial will be preserved.  Most personal injury auto accident cases that result in jury trials have some weakness.  In some cases there is a delay in obtaining medical treatment after an accident.  In some cases there is a delay in the development of symptom after an accident.  In some cases pre-existing conditions are exacerbated or aggravated and there is no new injury.  In other cases a person complains a pain without any positive diagnostic findings.  Many times we see severe injuries with very minor property damage to the involved vehicles.  Many of these difficult cases are tried and result in defense verdicts.  

Sometimes difficult cases go to trial with a surprisingly good outcome. 

Insurance companies will spend money to litigate these cases, because they know some personal injury attorneys do not want to incur the expenses to take them to trial.  Many of these difficult cases settle for a nominal amount before trial.  

Some personal injury lawyers will try these difficult cases.  It is difficult for personal injury lawyers to decide which personal injury cases that really should be tried.  

Sometimes these difficult cases go to trial, and the jury will simply not believe the plaintiff was injured.  Oftentimes, when there is a plaintiff’s verdict, the jury will cut damages for medical bills, wage loss and/or pain and suffering.  If a plaintiff goes to trial and the result is a defense verdict the plaintiff will, undoubtedly, be on the hook for attorney’s fees and costs incurred by the insurance company in defending the case.  This can result in a judgment against a personal-injury victim of tens of thousands of dollars. If there is no offer made to settle a claim, and the plaintiff  is judgment-proof, any downside financial risk to the plaintiff can be extinguished in bankruptcy.   

Insurance companies always like jury trials over bench trials (trials without a jury).   They know that their odds of a defense verdict are greater with a jury than with a bench trial.  Once one side requests a jury, the opposing side generally cannot change the case back to a bench trial.

Can a jury really be impartial?  There are certain rules that control jury conduct to keep jurors impartial.  In a jury trial, the judge instructs jurors prohibiting them from conducting any outside research while they serve on the panel.  They are prohibited from discussing their case amongst themselves prior to the close of evidence and  the start of deliberations.  They are instructed to set aside any prejudice or preconceived notions that could affect the outcome of their decision.  

Despite these judicial warnings juror conduct may not be perfect.  Jurors are not supposed to communicate with others about the case.  In this modern technological age the internet can be accessed by a cell phone.   After they leave the courtroom, despite the warnings many will seek access to internet sources and attempt to dig deeper into the case to get  information to share with their fellow jurors.  Recently on the news a juror in a federal drug case admitted to the judge and he was doing research on the case on the internet.  It was also determined that many other jurors were doing the same thing.  This resulted in a mistrial.  Jurors are not allowed to do their own independent investigations of the case.   They are limited  in their decision making by only  the evidence that is presented during the trial.  They can’t be exposed to any evidence which is excluded by the judge, and they can’t have  access to any information that can create bias or prejudice toward any party.  Some jurors just do not follow these instructions.

The legal system provides for “voir dire.”  This is a process by which prospective jurors are questioned about their backgrounds and potential biases and prejudices before being chosen to set on a jury.  Personal injury attorneys want jurors who have been involved in car accidents or have had a close family member who has been has been involved in an injury producing not-at- fault car accident.  However, it is likely that these jurors will not be selected to serve, because they will be preempted by the defense. 

Juries must deal with complex legal issues during their deliberations. They are instructed on the legal issue of proximate cause.  This legal concept is confusing to jurors.  Lawyers spend many hours in law school studying this legal concept.  Proximate cause inquires into the sufficiency of the  connection between the defendant’s action in the plaintiff’s injuries.  When there is an intervening event between defendant’s negligence and plaintiff’s injuries, the determination of whether defendant’s conduct was a proximate cause of plaintiff injuries turns on whether the intervening event was a foreseeable consequence of the defendant’s negligence.  Were there other factors that contributed to the injury?  Was there enough force associated with the accident to cause an injury potential?  Was the defendant’s negligence continuous up to the time of the injury?  How much time elapsed from the negligent act to the injury.  Expert witnesses used by both sides in auto accident cases often express opinions concerning causation and proximate cause.  It is not unusual in a jury trial to have an expert’s on both sides state diametrically opposed opinions. It is easy to see how jurors can become overwhelmed by all this and loose perspective concerning their job as jurors.

So not every act of negligence combined with the development of injury will result in an plaintiff’s verdict.  The defense will always take the position  that the injuries were not caused by the subject accident.  They will center their defense on delayed symptomatology,  pre-existing conditions and lack of injury causing potential.

One of the recent jury reforms is to allow jurors to asked witnesses questions during the trial.  This procedure is slowly gaining acceptance throughout our country.  In most cases, the jurors to write down their questions and the judge determines the admissibility of the question.  The judge will read the question to both counsel and allow them to object.  The jury and witnesses are removed from the courtroom during this process.  

Juror comprehension is strained by lengthy cases and complex evidence and intricate law.  Jurors in these cases can become dissatisfied with their participation and look for an easy decision based upon an insignificant event that occurred at trial that was not commented upon by either side.  

A jury’s decision making ability is not always entirely accurate. Once their verdict is entered, the legal system limits procedures to query jurors to determine if they correctly applied the jury instructions to the evidence and honestly deliberated on the case.  See, e.g., NRS 50.065. The general rule is that we cannot inquire into their decision making process.  Therefore, the decision to take an auto accident case to trial is not easy one.  Many juror factors come into play.  The plaintiffs need to know what they are getting into with a jury trial, so that they can make an intelligent and informed decision about any settlement offer made on their case.

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