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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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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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When silence is golden… The tacit admission.
Indiana Rule of Evidence 801(A) provides: A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected →
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Erroneous Recognition, Flyfishing and the Honest “Liar”
An “disinterested” adverse eyewitness has just testified and has devastated your case. You know they are wrong, but they were so convincing. They seemed so sincere. What if the jury believes the witness is sincere? If they think the witness is not lying, is all lost? Eyewitness testimony is inherently dangerous. In fact, “erroneous recognition” →
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The Truth of the Matter When It Comes to Impeachment.
So a witness changes their story on the stand and as a result your case is at risk of being directed out for insufficient evidence. Can impeachment with a prior statement save the day? Maybe… In order to present extrinsic proof of the prior statement, it will have to be authenticated by the impeached witness →
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All Things Have a Rhythm Inluding Your Closing and Examinations
I was listening to a new album by cousin Peter Neff that he created in collaboration with his co-composer Mauricio Yazigi titled Spanish Guitars. The sound and rhythm is mesmerizing. It reminded me that a good cross-examination or closing argument has its own rhythm and melody. The pace and delivery both lulls and controls the →
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Medical Malpractice: When Common Sense Trumps Expert Knowledge
Medical malpractice cases are difficult and expensive to litigate. However, sometimes experts are not required… Just common sense. Indiana has long embraced the “common knowledge exception” to requirements of expert testimony in certain matters. A physician’s allegedly negligent act or omission can be so obvious that expert testimony is unnecessary. Wright v. Carter, 622 N.E.2d →
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Closing Argument – Taking the Wind Out of the Other Side’s Sails before They Leave the Dock
It is important to stick with the argument that you’ve planned out and then aggressively and positively put forward your case. You don’t want to waste too much time responding to the other side’s argument to the detriment of their own. You want to help the jurors reach their own conclusions about the case through →
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The Barrister’s Toolbox will hit 50,000 Views today… Now What?
Today my blog will have 50,000 views for the over 107 posts I have authored on a number of topics that confronts today’s trial advocate. My most read topic is about how to handle a deposition errata sheet. I find that quite surprising. A young attorney from New York called to thank me for the post and →
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Closing Argument: Begin Strong, End Stronger and Sock It to Them!
As far as I am concerned, when it comes to your closing argument, you want to begin strong and end strong. You are the director, producer and central author of the closing argument. Syd Field is the author of a number of books on screenwriting. His principles have equal application to the formulation of a closing →
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Direct Examination and Keeping Company with Honest Serving Men
On direct examination Indiana Rule of Evidence 611 requires you to use non-leading questions to elicit information from a witness. Like a good journalist you must uncover the Who, What, Where, When, Why and How. Incorporating these words into your questions will avoid leading the witness and prevent objections concerning the form of your question. →
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