But what about discovery?

The rookie mistake to make when deposing an opponent’s expert is to essentially show him your entire case, make all of the arguments you want to make, and then hope the expert concedes he/she was wrong the whole time. This never* works. (*ok… so in maybe 1 in 100 or 200 cases it can work, but only if you have the expert completely dead to rights, have established that the expert’s conclusion relies solely on one demonstrably false assumption, have established that his opinion would change if that assumption was false, and can prove that the assumption is false. Even then you might get some weasling). I’ve read a ton of transcripts that go like this:

Q: So doctor, you agree that Mr. Plaintiff had pain after the crash, true?

A: At some point, yes.

Q: And you didn’t see any complaints of pain in the 10 years of prior medical records you reviewed, true?

A: True.

Q: So isn’t it logical that Mr. Plaintiff’s pain came from this crash. 

A: Nope. It’s degenerative. 

If this is your line of questioning in a discovery deposition, you’re doing it wrong. I mean, geez… what did you think the expert was going to say? Yes? Come on. This line of questioning is OK at trial, but you aren’t going to get any good admissions this way.

I believe the first step in deposing a defense expert is:

1. Prepare yourself. 

Read and understand the expert’s report and whatever the report is based on (ie your client’s medical records, an accident reconstructionist’s testimony, physics, whatever). Make sure you understand what the hell the expert is talking about. This includes things like googling words you don’t know, learning formulas like Delta V, etc. 

Read any articles the expert relies on. Read any articles cited by those articles or that cite those, especially ones that are critical. Review the expert’s CV and read anything the expert has written that might touch on the subject of his/her testimony. 

2. More preparation – old testimony

Obtain any prior testimony of this expert you can. Past reports, past depositions, trial testimony, whatever. Good places to start are local trial listservs and trialsmith.com (plaintiff’s lawyers only). Search westlaw, state court decisions and state workers compensation decisions for cases in which the expert has testified. Contact the lawyers involved and see if they have any depositions or other transcripts (or even expert witness disclosures signed by the expert). 

For the frequent fliers, you may have almost all of the information you need right here. Chances are, somewhere along the line you’ve found important concessions to your case. Organize those in your trial outline by deposition, page and line so that if the expert denies the fact or opinion you’re trying to elicit, you can impeach him/her with the prior testimony. 

3. Find out where the battle lines are drawn. 

This is crucial to any expert’s deposition. You need to know what they’re going to say at trial. All of it. This may include asking them questions about subjects that aren’t specifically addressed in the expert disclosure (ie was Mr. Plaintiff compliant with treatment; I assume you don’t have an opinion about the minimum delta v required to cause a crash). This depends on whether you think the judge will allow testimony that wasn’t specifically disclosed beforehand. Some judges (and some states) are very strict, some are very lenient. In doubt, I like to know what the expert’s opinions are – all of them – even if they hurt me as opposed to having a new opinion I was unprepared for sprung on me for the first time at trial. 

The next step depends on your purpose:

4A. Stop.

If you know where the battle lines are drawn, you have the admissions you want in prior testimony, and you know the case isn’t going to settle, just stop. Save the good stuff for trial and possibly leave your opponent unprepared. 

4B. Hit ‘em hard.

If you’re pretty sure the case is going to settle, hit them with all you have right now. Show the other attorney how weak their expert is and how poorly they hold up. Show them that you know he failed his boards, he’s lying about his CV, how he previously testified to the opposite of what he’s saying now, how his last journal article strongly contradicted him, etc. Show no mercy and make them run back to their client for settlement authority. 

Of course, if you choose 4B, be sure the case is going to settle. If you do this, you’ve now given the other side and their expert time to think things over and weasel out of some of this. Besides, if your case is really terrific and the other expert is that bad, try the case! Remember, settle your dogs, try your winners. 

(Howard Zimmerle is a trial lawyer with Warner & Zimmerle in the Quad Cities. He has offices in Rock Island and Davenport, and handles cases in Iowa and Illinois. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660). 

New Rule 243
Rule 243. Written Juror Questions Directed to Witnesses
(a) Questions Permitted. The court may permit jurors in civil cases to submit
to the court written questions directed to witnesses.
(b) Procedure. Following the conclusion of questioning by counsel, the court
shall determine whether the jury will be afforded the opportunity to question the
witness. Regarding each witness for whom the court determines questions by jurors
are appropriate, the jury shall be asked to submit any question they have for the
witness in writing. No discussion regarding the questions shall be allowed between
jurors at this time; neither shall jurors be limited to posing a single question nor shall
jurors be required to submit questions. The bailiff will then collect any questions and
present the questions to the judge. Questions will be marked as exhibits and made a
part of the record.
(c) Objections. Out of the presence of the jury, the judge will read the question
to all counsel, allow counsel to see the written question, and give counsel an
opportunity to object to the question. If any objections are made, the court will rule
upon them at that time and the question will be either admitted, modified, or
excluded accordingly.
(d) Questioning of the Witness. The court shall instruct the witness to answer
only the question presented, and not exceed the scope of the question. The court will
ask each question; the court will then provide all counsel with an opportunity to ask
follow-up questions limited to the scope of the new testimony.
(e) Admonishment to Jurors. At times before or during the trial that it deems
appropriate, the court shall advise the jurors that they shall not concern themselves
with the reason for the exclusion or modification of any question submitted and that
such measures are taken by the court in accordance with the rules of evidence that
govern the case.

The rule can also be found here.

So what does it all mean, practically speaking? A few thoughts:

1. Judges do not have to let jurors ask questions. I suspect many older judges won’t do this at all. I’ve spoken to some local judges who are excited about this possibility.
2. There is room to object and/or edit the question away from the jury. This is important, as I sure don’t want to object to a juror’s question in front of them.
3. No discussion between the jurors. This is good too – it prevents preliminary deliberation.
4. This does not need to happen for every witness. Hopefully this doesn’t slow down trials too much, although in a way it reminds me of letting fans suggest pitches to a pitcher – slowing down an already molasses-slow process.
5. I’m a little scared of this. I like control. I usually know what the defense lawyers are going to ask, and they probably know what I’m going to ask.
6. I also like the idea that jurors might feel more involved and more “into” a trial. This is a much better option than having jurors who are asleep by 1pm the first day of trial (or even in closing arguments… I had a juror sleep through my closing arguments once, and guess what… she became the foreperson, and I lost. GRRR…)

What do others think?

A recent article in the Illinois Bar Journal notes that other states and federal courts have tried it, and that the reaction of juries, judges and even attorneys has been largely positive.An example of this would be a pilot program in New Jersey, with similar results.

Will it change case outcomes? We’ll see. This may be the biggest change in trial practice since I became a lawyer – or it might be nothing.

(Howard Zimmerle is a plaintiff’s personal injury lawyer practicing in Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

Don’t be a stereotype.

It harkens back to Google’s motto  - “don’t be evil“

Basically the point is not to do what bad lawyers do. Not to be who the public often thinks we are. 

For some examples:

1. Be honest. Be honest with clients, juries, media, everyone. When you hide the truth or stretch the truth, it makes you a stereotype. 

2. Be humble. Often times the lawyers who are always shouting in commercials or on the internet about how great they are – aren’t that great. Be confident and proud to share successes, but don’t be a stereotype.

3. No frivolous cases. Don’t file a case without a really good basis for it. Hire expert witnesses who will give you the truth – not what you want to hear. Good lawyers don’t like frivolous cases – they get in the way of good cases, make it harder for good cases to get to trial, and poison the public’s opinion on the justice system in general. The same should go for defense attorneys. No frivolous defenses. Unfortunately, we see a lot of dumb defenses with no basis in fact. Don’t be that person.

4. Give back to the community. This should go without saying. 

I think this would be a good start for all lawyers. Greed, competition, fear and other emotions can sometimes jump in and cloud a good lawyer’s judgment. In those times, come back to this and remember who you want to be – and who you don’t. 

(Howard Zimmerle is a personal injury lawyer from the Quad Cities in Iowa and Illinois. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660).

As a plaintiff’s personal injury lawyer, however… there’s a line somewhere. 

Most of the time we deal with people who have very little legal experience – and almost always no relevant personal injury experience. If they have an idea in mind about what their case is worth, it often comes from either (a) news reports of big verdicts/settlements (ie McDonalds coffee case), or (b) what some friend/neighbor/coworker got in a settlement several years ago. 

So when we discuss settlement or trial, our job is to inform our clients so that they can make the right decisions. If they have a great case, they still need to know that juries do weird things. Slam dunk cases can be lost. Juries can award medical bills of $200,000 and $10,000 in pain and suffering and think they are doing you a favor. Juries tend to make the right decision, but there are always horror stories of juries who make decisions on bad assumptions, or because they didn’t like someone’s shoes, or whatever. 

If your client’s case is dicier – questionable liability, major issues of some kind, whatever… you have to be blunt with your assessment of chances. You have to be able to explain that, say, juries often don’t award anything for minor impact auto cases, or that their treating doctor will connect the accident and injuries, but not with as much gusto as the defense’s doctor. 

You have to do all of this in a way that clients understand the potential pitfalls, but still trust your abilities and still know that you believe in them and will fight for them. 

If you are too blunt with your assessment of trial potential, your client might start to doubt you. They might think they didn’t hire the right lawyer. They might spread bad word of mouth. 

On the other hand, if you are too rosy, and if things don’t go well, they will doubt you. They will think they didn’t hire the right lawyer. They might spread bad word of mouth. They might even sue you for malpractice, breach of warranty, or something creative like that. 

The key is riding the line – staying honest and blunt, but with the right level of optimism. At the very least, in every case your client needs to understand that we never know exactly what a jury is going to do. The case depends on 12 (or 6 or 8 or whatever) people we’ve never met and only get a limited amount of time to talk to beforehand. It depends on whether all witnesses show up, whether they come across well in stressful situations, whether the judge applies the law correctly, etc, etc, etc – many things that we just can’t know until they happen. We have a good idea what will happen, but you just never know. 

(Howard Zimmerle is a personal injury, medical malpractice, nursing home malpractice, trial lawyer in Rock Island, Illinois, with an office in Davenport, Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com).

A new case came out holding that shoulder injuries are to be considered part of the body as a whole, not part of an arm. Read about it here. 

The new regulation clarifies a few things, namely:

• Damages for personal injury or sickness are not taxable
• Damages for “emotional distress” are taxable unless they are attributable to a physical injury or sickness
• Punitive damages are taxable

The emotional distress language is important for people who handle employment law cases, false arrest, or other torts where emotional distress is recoverable but don’t typically involve physical injury or sickness.

(Howard Zimmerle is a trial lawyer from Illinois. He practices throughout western Illinois and Eastern Iowa. He can be reached at 309-794-1660 or at hzimmerle [at] mjwlaw.com.)

If you’re a workers comp lawyer, stop what you’re doing and read it.  Right now.

It’s intended for arbitrators and practitioners and should help people (especially new attorneys) learn to do things the right way. Many do, many more don’t.

I’ll keep a copy at my desk and read it from time to time. I suggest you do too.

(Howard Zimmerle is a personal injury and workers compensation attorney from Rock Island, Illinois, practicing primarily in Rock Island, Henry, Mercer, Knox and Whiteside counties in Illinois and Scott and surrounding counties in Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

So does a physician NEED to report a level of impairment? Likewise, does the arbitrator NEED an impairment rating to approve contracts or enter a finding of disability?

According to the Commissioner’s office, the answers are No, and No.

I’m speaking at a seminar in Fairview Heights in February in detail about the effect of the new rule and the application of the AMA Guides. For now, there may not be as much of a shockwave as we thought.

(Howard Zimmerle is a personal injury and workers compensation attorney in Rock Island, Illinois, practicing in all of Western Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

We want to look polished, especially in front of a jury. If we speak without stammering, without “uhs” and “ums” we will seem better, stronger, more knowledgeable, and more persuasive.

Right?

Probably not. There is a study linked in this interesting article in Slate that involved telephone survey interviewers. Interviewers who said “uh” and “um” more were more successful in getting people to agree to take a phone survey. The hypothesized reason was that people who didn’t have those verbal tics seemed more scripted – less authentic.

This really supports a point made by most people who discuss trial advocacy, from Gerry Spence all the way down to me. Juries love authenticity. Juries want to know that you are speaking with them, not at them. If you come off too polished, you can come across less believable.

(Howard Zimmerle is a trial lawyer in the Quad City area of Iowa and Illinois who specializes in personal injury cases. He can be reached at hzimmerle [at] mjwlaw.com or 309-794-1660). 

The Chicago Tribune has that covered. The neat thing to come out of the article was how the jurors took preliminary votes. Rather than using a straight up “guilty/not guilty” vote, they used the “fist to five” method, which I had never heard of before.

As the Tribune puts it:

Instead of private ballot, they did a “fist to five” vote, a consensus-building technique Karin Wilson suggested. If a juror raised a hand with all five fingers, that meant they were leaning strongly toward guilty. A fist was innocent. If the juror was somewhere in between, the number of fingers held up gave an indication of which way she or he was leaning.

Brilliant!

After doing a little research, this is apparently a common decisionmaking tool in corporate meeting settings, or at least in those corporate “six-sigma”-type retreats where people discuss management, leadership skills, how to run a business, etc.

Frankly, it sounds like one of the neat ideas you get after a seminar but never really put into play. I’m glad to see it worked!

Another thing that stuck out was that the jury considered the impact that the verdict would have on Blagojevich’s family. As the Tribune reported:

The panel discussed how the verdict would impact the lives of his two children, daughters Amy, 14, and Annie, 8. Ultimately, they said, they pushed those feelings aside and concentrated on the evidence.

“Everyone brought up that he had a family and young daughters,” the forewoman said. “This is a real human being, and it makes you kind of nervous. But we knew we had a job to do and stuck to the evidence.”

Sometimes we like to pretend that the jury won’t think of these things. Of course they will. We’re all human. A good lawyer will consider this and maybe even address it a little bit if the judge allows.

The third thing I noticed will give strength to the “reptile” attorneys reading this – the jurors hoped their verdict would “send a message” to other politicians. That’s really how all attorneys hope a jury will think. Examples would be hoping a medical malpractice verdict would send a message to other doctors/hospitals/nursing homes that sloppy practice won’t be tolerated, or that a car accident verdict would send a message that safe roads are important, or even that a defense verdict would send a message that bad lawsuits would not be rewarded. Of course, it is reversible error to directly tell a jury to “send a message”.

Finally, the article linked above mentions several times how well the jury got along. This contrasts with the last Blago jury, where the deliberations were far more tense and the jurors really didn’t get along well. I think the trial tip from that is to try to pick jurors who will work well with others. Stay away from jerks.

Hopefully we all learned something from this. Illinois – we have more imprisoned former governors than you do!

(Howard Zimmerle is a trial lawyer in Rock Island Illinois, practicing in much of Western Illinois and Eastern Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)