Articles Posted in Litigation Strategies

It is becoming cliché to say that social media is the next big thing in litigation discovery. In personal injury cases, I think social media captures the imagination of insurance adjusters and in-house counsel who inflate the likelihood of finding evidence on Facebook and Twitter that will be a game changer at trial. There have been more articles and blog posts about social media discovery than “Holy Grail, We Will Have Our Perry Mason Moment” discoveries.

One issue that has received little attention is just how creepy insurance defense and other lawyers can be in snooping into people’s social media postings. Admittedly, the creep factor is low for just Googling what is available on the party or witness online. But anything beyond that… well, it is not exactly Jack Nicholson in “The Shining” or Steve Buscemi in “Fargo” territory but, still, I would think most lawyers would at least want to take a quick shower after playing amateur voyeur.

San Diego County Bar Legal Ethics Committee looks at where the line is from needing to take a shower and unethical behavior. In an advisory opinion, the committee says that it is unethical for opposing counsel to try to Facebook friend a client’s former employer’s employee in a wrongful termination lawsuit.

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I’m not in the habit of offering advice to injury defense lawyers. Okay, actually I am. So here goes: defense attorneys, it is highly impolitic to combat a study suggesting that people who live near mountaintop mining operations are at higher risk of birth defects by saying the study didn’t take into account the effects of “consanguinity” in Appalachia. Yes, that’s right; Crowell and Moring, which has deep ties to the National Mining Association, implied that Appalachians who live near mines are having babies with birth defects, not because of the mines… but because they’re inbred.

The ABA Journal notes that, stereotypes aside, Appalachians aren’t any more inbred than the rest of us. Ultimately, if you will throw out politically incorrect invectives about something that causes children and their families significant pain, at least be right.

The firm is now backpedaling, saying that consanguinity should be taken into account any region and that it never meant to imply that Appalachians have a high rate of inbreeding. I would have liked to watch the video of the angst at the partners’ meeting where they panicked and drafted this PR back away.

We got an order in Anne Arundel County requiring a recidivist defense expert to produce his financial records before examining the Plaintiff.

I think there is the assumption that my firm is involved in some jihad against IME doctors. Self-referential as this may be, I think we have done more than any law firm in Maryland legal history in fighting for the right to present to a jury evidence of just how deep into the back pocket of insurance companies the doctor is and let them conclude whether this should matter. I’m very proud of this. We are fighting for our clients at every turn and our work has created good case law and helped put our clients in the best position to get the settlement or verdict we think they deserve.

That said, I think there are a lot of frequent flyer defense IME doctors that are good people giving honest opinions. Some less so. (I understate a bit to gain credibility with you, dear reader.) The battlefield on IMEs is whether the expert is required to produce financial information to let the jury decide whether the doctor is unduly motivated by who is paying his freight. Is it the single biggest battlefield in crossing IME doctors? No, I really don’t think it is (David Ball apparently agrees with me). But does it matter? Is it the touchstone issue in a minority of personal injury cases? Absolutely. We get paid to advocate for our clients at every single turn. Defense lawyers do the same. It is the way this game is supposed to be played.

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On Tuesday, Medicare and Medicaid set forth new and revised conditional payment final demand letters that are reported to comply with Haro v. Sebelius, No. CV 09-134 TUC DCB, 2011 WL 2040219 (D. Ariz., May 9, 2011). The word on the street is that Medicare has six new conditional payment final demand letters with all new lien language in personal injury and workers’ comp cases. The District Court’s opinion may have a real impact on how lawyers deal with HHS on the reimbursement payments owed to Medicare by operation of the Medicare Secondary Payer statute

This case is a class action of Medicare beneficiaries. The plaintiffs’ were frustrated by the way Medicare liens are handled.  The District Court enjoined HHS from threatening to commence action to collect an MSP debt while a beneficiary’s appeal or waiver request is pending. The court enjoined HHS from requiring attorneys to hold back settlement or verdict proceeds pending the resolution of Medicare’s claim for reimbursement.

Is dealing with Medicare on product liability, malpractice and accident cases about to get a lot easier? I don’t know, but I’m giddy. I’ll let you know when I find out more details.

I have started a little series on David Ball’s Damages 3 book on how to prepare and try a case. I will keep that going. But, today, I will turn to another “must-read” book for plaintiffs’ lawyers (and, shhh, probably for defense lawyers too): Polarizing the Case by Rich Friedman.

Ultimately, plaintiffs’ lawyers sue because of one of two things in dispute: liability or damages. If you are regularly filing lawsuits where both liability and damages are significant issues, you will be putting your resume out there soon. Because your firm is going under.

If the trial is ultimately about damages, the likelihood is that some element of the defense is that there is a chasm between the plaintiff’s claim of the pain and consequence of the accident and reality. If liability is clear and there is no claim of a preexisting injury, this is the only defense to the case. Rarely are both lawyers telling the jury, “Hey, we all agree on the injury and the impact on the Plaintiff, we just need to know what the value of these injuries is.”

There is a tension in the defense lawyers’ argument. Usually, their play is to say, “Believe me, we are not calling the Plaintiff a liar. We would never do that. But we will convince you she is that “L” word that we can never say. Don’t believe a word that comes out of her lying mouth. And let’s work together during the trial to call her the “L” word without saying that. (Because we would never do that.)” Continue reading

No, this isn’t another polemic about how personal injury lawyers should blog or tweet. I don’t care if you blog or tweet.

Social media has been a boon for two types of people: stalkers and defense lawyers. Personal injury lawyers are not using social media offensively in great measure. Not a lot of doctors are tweeting “I knew I should have counted the instruments before I closed on Mr. Smith. Alcohol makes me silly.” And while you might occasionally hit the jackpot, it is unlikely the guy who rear-ended your client on I-83 tweeted out pictures of himself red-faced and hoisting a giant peach margarita at Water Street a half an hour before the accident.

More often than not, jury trials are about the credibility of our clients. Our clients’ veracity or lack thereof is usually the fulcrum on which the outcome of a case hangs. Social media is a great opportunity for defendants to find – maybe out of content or maybe in context – evidence that contradicts our client’s claim. Continue reading

You are the Plaintiff’s lawyer. You are bent on getting your case ready for trial from the moment you file a lawsuit. After you have almost completed discovery, you send out requests for admission to truly narrow the issues you will face at trial. Good job. You are more thorough than probably 99% of Maryland personal injury lawyers.

But ninety-nine percent of the time, you will get obstructionist answers to your requests for admission. Even good, reasonable defense lawyers file woefully inadequate responses. Two reasons for this: (1) No one wants to admit anything before trial (including, ironically, the things they have already admitted); and (2) there is little chance anyone will hold their feet to the fire.

The reason for the latter is simple: it is painfully tedious to file a motion to compel evasive answers so most personal injury lawyers don’t.

Steve McConnell writes a post for the Drug and Device Lawyer Blog about an angry liar of a plaintiffs’ lawyer who keeps hitting 8-figure verdicts and settlements.

How can this happen? Steve figures out the solution to this problem the way most of the vexing litigation challenges are solved. This lesson came during an invariably pandering lunch with an in-house counsel client who figured the paradox of why juries reward dirtball plaintiffs’ lawyers with big verdicts. The answer is that an angry jury — no matter the source of the anger — is bad for the defense.

Their message in all of this for trial lawyers is clear: we should turn hundreds of years of psychology and trial advocacy on its head because some in-house counsel type – who may or may not have taken trial ad in law school – offers his solution during a suck up lunch.

I will give Steve the benefit of the doubt here and assume he is acting as a double agent disseminating bad information for plaintiffs’ lawyers. I could send the Drug and Device Law Blog the zillion of trial advocacy/trial strategy books my firm has bought over the last 10 years. (I could put the Drug and Device Law Daughter mentioned in the post through college with the money we have blown on these books.) No one has remotely suggested this is a wise tactic. Ever. This flies in the face of not only conventional wisdom but “new school” trial advocacy (see, for example, David Ball on controlling a witness without controlling a witness.) Making people not like you is just a bad idea.

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“There is only one reliable tool for undermining defense experts,” David Ball tells us in Damages 3.

What? There is only one? Really? This is a big deal because, as any trial lawyer will tell you, cross-examination of defense experts can sometimes make or break a personal injury case. Even assuming this is a bit of hyperbole, if the Dean of Damages thinks there is just one thing, it is worth making sure – at a minimum – you know what that one thing is.

So take a second. What do you think David Ball says is the only reliable tool to use when you cross-examine experts? Continue reading