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Keep in Mind that Judges Are Only Human
So often I see attorneys lose sight of the fact judges are only human. This means one has to be mindful of what you can reasonably expect of a judge. Help a judge by: 1. Making your arguments or briefs short and succinct. Get to the point. Judge’s have limited time. Don’t cite ten cases… →
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Calling Out Meaningless Expert Disclosures in Medical Malpractice Cases
The defendant doctor’s style of disclosure is almost always generic in nature and could be used in virtually any case of medical malpractice (i.e. all care provided by Dr. “X” was within the appropriate standard of care and was not a factor in the outcome). No meaningful expert disclosures are made revealing the grounds and… →
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Defense Medical Examinations – When Are They Allowed?
There is no automatic right to have an injured party examined by a doctor hired by the defense. Indiana Trial Rule 35(A)[1] requires the Defendant establish “good cause” for a requested medical examination. Stuff v. Simmons, 838 N.E.2d 1096, 1103-1104 (Ind. Ct. App. 2005), citing with approval, Womack v. Stevens Transport, Inc., 205 F.R.D. 445,… →
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Litigation Settlements Can Be Taxing
Often times in resolving a case issues can come up that give rise to questions about whether a settlement is taxable. There can also be issues regarding whether or not a Plaintiff can deduct attorney fees from the settlement in determining whether they will be tax on the gross recovery or the net recovery. These… →
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Summary Judgment by Stealth – How Get By Summary Judgment Without Ever Filing a Motion
So your opponent has decided to seek summary judgment on its affirmative defense against your client. This seems to happen often enough. However, if the defense is not careful in preparing their motion and does not properly support it with evidence, the surprise may be on them. Indiana Trial Rule 56(B) can reverse the tables… →
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Misbehaving and Dealing with the Same During a Deposition
Depositions are legal proceedings which are not typically officiated by a court officer. During such affairs attorneys can behave quite badly. Such behavior can range from simple rudeness to conduct that borders on criminal conduct such as threats of bodily harm or emotional charges to go outside and handle the matter like a man. Needless… →
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An Unforeseen Value to Loss of Consortium Claims in Selecting a Jury.
As a Plaintiff’s attorney you want to identify jurors who will refuse to follow the Court’s instructions directing the grant of money damages for pain and suffering. I inadvertently found something that is even more polarizing and controversial than claims for such intangible losses… Loss of consortium! I was picking jury in a rural county… →
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The Floor for the Value of a Human Life is Flying High
You have a wrongful death claim and need an indisputable source of information to determine the minimum value of a human life. Wouldn’t it be nice if the federal government published minimum values for the loss of a human life? Well, they have! The U.S. Defense Department has made a conscious decision on this very disputed… →
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Why Sorry is the Badest Word…
An expression of regret or an apology by a Defendant is nothing new when a case doesn’t settle and finally makes it to trial. However, should this be allowed? Why no! Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with a civil case not seeking punitive… →
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Does an Oath Inoculate a Medical Witness from Being Biased in Favor of Other Healthcare Providers?
“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” – John Henry Wigmore The existence of financial bias is a well established area of cross-examination when dealing with the credibility of witnesses and experts alike. Indiana law is clear that the income of an expert derives from his/her work as an expert… →
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Impeccable Impeachment and the Use of Prior Convictions
“Trust is not simply a matter of truthfulness, or even constancy. It is also a matter of amity and goodwill. We trust those who have our best interests at heart, and mistrust those who seem deaf to our concerns.” Gary Hamel What are the limitations on the use of prior convictions in challenging a witness’s… →
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Do it for the love…
Today I learned Magistrate LaRue died after leaving legacy of doing justice on the bench as fine and fair jurist. As a private attorney she advocated for civil rights for the everyday man. She did it for the love. A friend of my son Al, John Overton, released a rap/hip hop Album “While I… →
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Limiting the Damage
So you lose an evidentiary argument and the court allows some potentially prejudicial evidence to be presented for some narrow purpose such as bias, impeachment or to show intent, similar plan, motive or scheme. So what should you do? Indiana follows “the rule of multiple admissibility” endorsed by the evidence treatises of both Whitmore… →
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Admissibility and the Burden of Proof are as Different as Apples and Oranges…
In a recent case, the Indiana Court of Appeals held that a nurse practitioner can provide expert medical testimony in areas previously reserved to only medical doctors. In the decision from the Indiana Court of Appeals it allowed a Nurse Practitioner to testify as an expert witnesses in a soft-tissue case. See the link below:… →
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The Corrosive Effects of Greed on Credibility
“Don’t take a good case, try to make it a great case, and turn it into a bad case.” Richard Cook I never take on a new client without sharing the quote above with them. The most valuable component of any personal injury case is the client’s credibility… period, end of case. If you… →
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Readying Your Experts for Traps and Tough Questions
Depositions are dangerous time for your expert. Dangerous traps lies just around the corner. You cannot relax. Here are some thoughts on this important topic. 1. Tendencies of your expert: If you can obtain and read past depositions of your expert to see not only what type of questions are asked but how he reacts.… →
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Guarding Your Expert from Aggressive Counsel
Preparation is your greatest tool to avoid problems caused by difficult or agressive attorneys. Ultimately, once you are at the deposition there is little you can do without risking sanctions. Harassing behavior. If an attorney engages in ongoing harassing behavior which is truly beyond the pale, call the magistrate of court and have a… →
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Getting Your Expert Ready for Court – How to Play the Course and Avoid the Rough.
What does an Expert Witness Needs to Know About Court Proceedings? Here are some thoughts to keep you expert out of the rough: 1. Review all evidentiary foundations. You should review the appropriate foundational requirements for the admission of any records, tests, or other analysis which is not stipulated to by the opposing party.… →
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Polling a Jury: How to Keep Yourself Out of La La Land…
So the clerk finishes reading the jury’s verdict and your client has just lost. What do you do? Why read the jury rules: RULE 30. JUDGE TO READ THE VERDICT When the jury has agreed upon its verdict, the foreperson shall sign the appropriate verdict form. When returned into court, the judge shall read the… →
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