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 when one is right on point. Less is more when you’re trying to win a judge over.
2. Be professional and respectful. Judges don’t want to referee a food fight. Address your remarks to the court, not opposing counsel. Avoid personal attacks on opposing counsel. Attack your opponent’s arguments, not their integrity. Such attacks grate on a judge and are rarely effective. Once you offend someone, you lose your ability to persuade them.
3. Don’t inundate a judge with more work than he has time to complete. If you have pretrial motions and exhibits the judge needs to review and rule upon, make sure they are presented sufficiently in advance of trial so the judge she can accurately rule upon them. Have the Court set reasonable deadlines for all involved. Otherwise, you are inviting errors in rulings or a sua sponte continuance of your trial.
4. Pre-mark exhibits and give the courtroom deputy an exhibit chart that identifies each exhibit by number or letter, description and has columns to show if it is marked and offered, as well as a column to show if it is admitted or excluded. Have sufficient exhibits for all jurors, court staff, the witness stand and opposing counsel. You will endear yourself to the court and it’s staff.
5. Show up early to court and always make sure you have witnesses there on time and in reserve. Judges hate to waste their time or the jury’s.
6. If you can anticipate potential issues that might arise, have a trial brief or a copy of a controlling case on hand for the judge and opposing counsel. If you are sure an issue will come up, you might want to submit your brief or authority early. Judges hate surprises.
7. Learn the judge’s courtroom procedures for jury selection, how juror strikes are handled, the proper location for questioning a witness and when and how you may approach a witness.
8. Provide a copy of your jury instructions in electronic form to the court so they can easily be edited.
9. Check with other attorneys who have tried a case with the judge and learn his preferences, weaknesses and biases.
I hope these tips are of use. Good luck in your next trial.
Deposition of a Party or Witness and the Power of Dignified Demeanor
While watching a news report on the oppression of people inside of Russia and attempts to control every aspect of their lives, I heard the following quote:
Victor Frankl ~ “Everything can be taken from a man but one thing: the last of the human freedoms — to choose one’s attitude in any given set of circumstances, to choose one’s own way.” March 26, 2013
This quote reminded me of a point I often make to witnesses and clients… you cannot control the questions you are asked or the tone and attitude of the questioner. However, you have absolute control over your own demeanor and how you choose to respond. You can stay polite and calm in the face of harsh and demeaning questioning or you can respond in kind.
If you respond in kind, the jury will forget the fact that the questioner was rude and arrogant, and instead focus on the witness or party’s lack of composure. The questioner will feel empowered and extend his line of attack sensing blood in the water.
On the other hand, if the witness or party remains truthful, polite and calm the questioner will be revealed as an arrogant bully. The questioner will become discouraged and cut short his examination. The battle of wits will be won.
As Sun Tzu notes in the Art of War:
“If your opponent is of choleric temper, seek to irritate him. Pretend to be weak, that he may grow arrogant.”
Their is no greater irritant to a bully than remaining calm and composed. Remind your client or witness of their freedom to choose their attitude and control their demeanor. This advice will empower and cut short abusive questioning at trial or during a deposition.
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 reasons for the conclusions reached, in other words, the “why” for the expert opinions.
Indiana Trial Rule 26(E)(1) explicitly requires a party to seasonably supplement their responses (regardless of any request to do so) concerning the opinions, conclusions and findings of any expert witness. This duty is absolute and is not predicated on either a Court order or repetitive discovery requests. Lucas v. Dorsey, Corp., 609 N.E.2d 1192 (Ind. App. 1993). A party is entitled to know the subject matter of the expert’s testimony, the substance of the facts to which the expert(s) will testify, their opinions, and a summary of the grounds for each opinion. In Ferrara v. Balistreri and DiMaio, Inc. (1985), D. Mass., 105 F.R.D. 147, a Defendant requested the Plaintiff state for each expert the name, address, subject matter of their testimony, substance of facts to which the experts would testify, his opinions, and a summary of the grounds for each opinion. In response, the Plaintiff noted for several of the expert witnesses that he had not yet obtained a report setting forth the facts and opinions of the expert but would provide a copy of the same upon receipt. The Trial Court decided that such a response was inadequate under the Federal Rules of Civil Procedure and stated that:
The duty to supplement is a duty to supplement seasonably (original emphasis). Counsel must not postpone supplementation indefinitely by delaying the retaining of experts and expecting that when he will be able to supplement at the last possible moment before trial is to start. Similarly, counsel may not postpone supplementation by not obtaining from the experts which had been retained the information which is to be supplied in answer to expert interrogatories. In the instance case, counsel for the Plaintiffs did both.
Id. at 150.
The Trial Court specifically ruled it was improper to answer this interrogatory concerning experts on the basis that the witnesses’ opinions would be disclosed when counsel for the Plaintiff “obtains” a report. Id. at 150. The Court determined the Plaintiff’s counsel was under an affirmative obligation to procure such information so that he could file full and complete answers to the expert interrogatories, and was not entitled to delay in doing so. Id. at 150. The Court specifically rejected the Plaintiff’s position that he was under no duty to supplement if the experts had not given him the information. Id. at 150-151. As a result of the Plaintiff’s failure to provide such information, the Court excluded the testimony of certain expert witnesses at trial. Id.
This Rule has also been applied even to rebuttal experts. McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993).
No meaningful expert disclosures have ever been in the present case revealing the grounds and reasons for the defense expert’s opinions concerning whether the defendant doctor has breached the standard of care.
A party cannot withhold expert disclosures even if the expert is being presented by way of rebuttal. McCullough v. Archbold Ladder Co, supra. Full disclosure of the “substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion” must be made. Such is required in order for a Plaintiff patient to fairly address a defense doctor’s testimony and determine the areas of questioning required.
Allowing generic disclosures permits the defense to wait until trial and hide in the weeds. This not fair and violates the obligation to provide meaningful disclosures in advance of trial.
I recommend calling the defense out with a motion to compel or seek a protective order when the defense expert disclosures simply state the doctor’s treatment provided met the standard of care.Read the rest of this entry
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) 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, 446 (E.D.Pa.2001). In this regard, the good cause requirement turns on the relevance and need for the defense medical examination. Id., citing to, Womack, 205 F.R.D. at 447. Good cause requires a showing that the examination could adduce specific facts relevant to the cause of action and is necessary to the defendant’s case. Id. The Court must decide as an initial matter whether the motion requesting a physical or mental examination adequately demonstrates good cause. Stuff v. Simmons, supra, at 1104. Indiana Courts have held that the specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired materials are relevant, for the relevancy standard has already been imposed by Rule 26(b).
By adding the words “good cause,” the Rules indicate that there must be greater showing of need under Rule 35 than under the other discovery rules. A bare bones request is not enough. The good cause requirement is divided into three elements:
(1) an examination is relevant to issues that are genuinely in controversy in the case;
(2) a party must show a reasonable nexus between the condition in controversy and the examination sought; and
(3) a movant must demonstrate that it is not possible to obtain the desired information through means that are less intrusive than a compelled examination. [Emphasis Added].
Id. at 1104.
If a Plaintiff’s condition has already been evaluated by less intrusive means (a records review) and an opinion by other doctors and no depositions have been taken of these providers, a good argument can be made that other less intrusive means have not been exhausted. Also, what new information will be revealed that is not available from other objective sources such as tests, studies, lab results, EMGs, or radiographic studies?
Good cause does not exist if these sources have not first been exhausted. Ultimately, the defense has to carry its burden for a defense dental examination, not the Plaintiff. So keep these thoughts in mind next time you confront this issue.
 Indiana Trial Rule 35(A) provides in pertinent part as follows:
Order for examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. [Emphasis added]
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 issues can turn on the type of claim being made and the underlying statutory basis for the claim. Likewise, the type of injury that forms the basis for your client’s claim can impact taxability. Is it a personal physical injury or physical sickness? Are punitive damages being sought? Is interest included in the recovery? How is does the language of the settlement agreement read? Is confidentiality a requirement of the settlement? How is that handled in the agreement? Is a qualified settlement fund being used? I could go on and on. My point is you need to familiarize yourself with these potential problems before you settle a case and commit the agreement to paper. This is especially true when dealing with employment related claims, attorney fees or punitive damages.
I am not here to dispense advice, but rather to get you thinking about these issues. An attorney and prolific writer on such topics is Robert W. Wood, a tax attorney specialist from California. I reached out to him and he was kind enough to suggest the following articles to better educate myself:
When Mediating Legal Disputes, Think Taxes
Taxes and Settlement Agreement Wording Underscored Again
Taxing Emotional Distress Damages: Now What? Settlement Wording!
IRS Form 1099 Rules for Settlements and Legal Fees
Legal Settlements as Capital Gain: A Playbook to Avoid Ordinary Income
IRS Taxes Legal Settlements, But Some Are Capital Gain
12 Ways to Deduct Legal Fees Under New Tax Laws
New Tax on Litigation Settlements, No Deduction for Legal Fees
IRS Form 1099 Rules for Settlements and Legal Fees
Emotional Distress Damages Are Taxable, Physical Sickness Damages Are Not, How Come?
Taxing Emotional Distress and Physical Sickness: Chicken or Egg?
President Obama Was Right, PTSD Is Physical
President Obama and Damages for PTSD
New Tax on Litigation Settlements, No Deduction for Legal Fees
Lawyers, Clients Dance The ‘Taxes Two-Step’
Debunking 10 Myths About Tax Opinions
There are many additional articles on his firm’s website, which you can search here:
I wanted to publicly give him thanks for what he has written in an effort help other attorneys who are not well-versed in tax matters. I would encourage you to read articles available on his website. On a final note, having read all of the articles above and even some of the footnoted items and cases, I have come to the realization that the only things certain in life are death and taxes… but not tax opinions. When in doubt refer your client to a tax specialist for purposes of dealing with complex issues.
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 on your opponent when they file a motion for summary judgment. Indiana TR 56(B) provides as follows:
“(B) For defending party–When motion not required. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. When any party has moved for summary judgment, the court may grant summary judgment for any other party upon the issues raised by the motion although no motion for summary judgment is filed by such party.”
Many attorneys are unaware of this provision. They mistakenly believe that the door can swing only one way… against the plaintiff as the non-moving party. However, this is incorrect. The door swings both ways.
I have used this provision to obtain summary judgment in favor of my client when the defendant moves for summary judgment on their affirmative defense.
A defendant has the burden of production when it comes to an affirmative defense. The plaintiff has no obligation to present any evidence in opposition to the affirmative defense unless and until it has been properly raised by producing evidence that shows the defense was facially valid.
An unsupported motion for summary judgment on an affirmative defense leaves the defendant open to an oral motion for summary judgment in favor of the plaintiff made at the time of hearing. Always wait until the actual hearing to make your motion as it will be too late to correct their mistake.
Next time you confront a defense attorney who fails to properly support their motion for summary judgment on an affirmative defense, do not be afraid to orally move at the hearing for summary judgment in your client’s s favor. If the defense has failed to produce admissible evidence in support of its position, then you are entitled to receive summary judgment. I have won summary judgment on affirmative defenses numerous times by using this tactic to the dismay and surprise of my opponent.
Good luck using this stealthy tactic. They won’t see you coming until it is too late.
The Barrister’s Toolbox Hits 100,000 Views… Thanks to All Who Have Patronized This Site!
I write this blawg (blog) as a labor of love with gratitude for the privilege to pursue my dream job as a trial attorney. I have handled all sorts of cases involving misdemeanors to ones seeking the death penalty. I have been blessed to handle civil rights claims, class actions, along with personal injury claims from small monetary values to ones in the millions.
I have learned that there are no small cases. Every case is the most important case you are handling for that client. I have gained more from my failures, than my successes. Nothing focuses your mind like a loss… so thanks for the loses. They made me a better attorney. My goal every day is to be the best attorney I can and to hopefully be better than the day before.
I have tried my share of cases over the last three plus decades. I have attempted to share some of the lessons I have learned along the way. Hopefully, it will help you as you move forward with your career.
If you read this and have any thoughts or questions you would like to share please post below.
I hope you all have a blessed holiday season and thanks again for reading by blawg.
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 to say, you don’t want to be that guy. Only the trial court can legally terminate a deposition for abusive conduct by an attorney. Rule 30(d)(3) of the Federal Rules of Civil Procedure provides that a party may move to terminate or limit a deposition “on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent or party.” If the deposition is terminated you must immediately seek the trial court’s assistance and approval.
This not a course to chart unless it is justified. You and you client can be subject to sanctions and even disciplinary action for improperly terminating a deposition. See Rule of Professional Conduct 3.4. If you guess wrong and do not terminate the deposition properly, you can be responsible for paying the other party’s attorney fees. Smith v. Logansport School Corp., 139 F.R.D. 637 (N.D. Ind. 1991). Here is a famous example of things going south during a deposition courtesy of YouTube:
So be ready if abusive behavior occurs during a deposition. Act quickly and wisely… and remember don’t be that guy.
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 and questioned jurors about our claim for loss of services, love and affection . My concern was that religious jurors might feel that when you marry someone it is for “better or worse, for richer or poorer, in sickness or health till death do you part” thereby disqualifying them for monetary compensation. I was also concerned that other people may consider it double dipping since the injured spouse would recover for interference with the marital relationship as part of their claim for loss of enjoyment of life.
To my surprise and the court’s, there were so many jurors who stated they could not follow the law on this point and were unable to fairly consider such a claim, that we nearly ran out of jurors to empanel.
So include a claim for loss of consortium when supported by the evidence. It may be your best barometer for finding and eliminating for cause, jurors who cannot follow their oath and fairly compensate your client and their spouse for all their harms and losses.
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 issue of value.
The federal government has determined that the minimum value attributable to the loss of one life is $250,000,000 (a quarter of a billion dollars). How can this be? Where can the supporting information be reviewed? Well, the F-22 Raptor costs approximately $250 million per jet, replacing the F-15 Eagle which costs $65 million each.
The federal government installs pilot ejector systems on every F-22 Raptor Jet fighter. The government does this to protect the pilot, not the plane. In order to save the life of a pilot of a Raptor F-22, the government chooses to sacrifice our most expensive combat jet airplane to insure the pilot lives to fly another day. The F-22 jet airplane costs $250,000,000 to manufacture. In spite of this huge cost, the federal government has chosen to install an ejector system to save the pilot’s life even though the ejection of the pilot will result in the certain and immediate loss of a quarter of a billion dollar jet airplane.
How about that… This analogy was raised some time ago by a trial lawyer by referencing the Eagle F-15. Well the minimum value for the loss of a human life has just gone up… at least in the eyes of the federal government.