24 Woodbine Ave Suite 14 Northport New York 11768
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June 26th, 2013
This discussion considers two principal components of readying a case for trial.
This discussion considers two principal components of readying a case for trial.
The first component is the process of the Legal and the Claim Professionals reaching an agreement on the probable liability and damages outcomes if the case is tried, deciding what strategies and proofs will be employed at trial, and agreeing on what settlement strategies will be employed going forward.
The second component is the process of using a comprehensive trial-preparation check-list designed to ensure that the case may be tried as successfully possible if necessary, and letting your adversary know that you are prepared to do so if it comes to that.
I WHEN TO BEGIN
1. An inexact science.
2. Good trial preparation practices require significantly more lead time now than it used to.
3. Begin certain preparations as soon as the case is “certified” i.e. added to the trial calendar,
a. Demanding fresh Hippa Authorizations for Subpoenas,
b. Drafting a comprehensive report to the Claim Professional
c. Assembling 3126 Notices should be commenced at this point.
d. Revisit Expert Witness notices, for trial and against any summary judgment motion
4. Most organizations have a minimum requirement for Trial Strategy Conference lead time
5. Of course imperative when an actual trial date received Claims and Clients be notified
6. Little that will prejudice a case more than failing to prepare sufficiently in advance of trial, and there is practically no such thing as starting to prepare the case too soon.
II TRIAL STRATEGY CONFERENCE AND PRE TRIAL REPORTS
1. The purpose of the Trial Strategy Conference is to get the Assigned Attorney and the responsible Claim Professional on the same page on issues of liability, damages and settlement strategies.
2. Managing Attorney or Partner may assign a backup or attend to be able to brief a backup
3. The Attorney must be fully familiar with his case and be able to provide a thorough explanation of : liability /damages / theories of defense / risk and exposures.
4 Particulars Claims Professionals expect details on usually include: Witness and Deposition testimony / Affirmative Defense / Cross Claims / Injury Residuals / Special damages / Collateral Source, Workers Compensation or No Fault involvement / Defendants Medical Opinions / , Liability Expert Opinion.
5. Most Organizations tend to follow their Pre Trial Report as an outline. work “drilling l down” approach that separate discussions of liability, damages and settlement opportunities.
III DISCUSSION OF LIABLITY
1. What the Plaintiff intends to prove how he intends to prove it and how he may be thwarted
2 What further work may benefit the case.
a. Whether a Summary Judgment motion should be made.
i Whether a motion at least limiting Plaintiff’s case is warranted.
ii Punitive damages should always be challenged
iii Other causes of action that won’t hold up that can be disposed of now,
iv Common scenario some, all or none of the three Labor Law section causes
vi. Always the chance that a Judge (or his law clerk) will toss the case
vii. Cannot overstate the motivation on a Plaintiff’s in any settlement discussion.
b. Whether surveillance of the Plaintiff should be conducted. Generally where a Plaintiff is claiming activities of daily living or ability to earn a living, Surveillance is advisable.
IV THE “VALUE” OF A CASE
1. A similar conversation follows on Damages to agree on the most likely damages awards a jury might return and which an Appellate Court could sustain.
2. Delicate conversation for an Attorney asked “what the case is worth” or what the “walk away number” in any case where there is the real possibility of an excess verdict.
3. The Attorney should describe
a. Normal range of settlement is for a case of this sort in the given venue.
b. Probabilities of defendants, plaintiff or mixed verdicts are in this particular case.
c. Typical range of Jury verdicts for this injury in the venue
d. What amounts could be sustained on appeal.
4. What if there is sure to be an Excess Verdict inevitable unless case settled. While the precise manner in which this issue should be handled is beyond the scope of this discussion, it is imperative that this fact be brought to the attention of his Managing Attorney or Partner as soon as it arises.
5. What an Injury is “worth” Attempt to determine where the injury fits in a Framework that focuses on is how long it took the injury to heal, what residuals the injury left, and what economic impact the injury imposed.
a. Trivial: These are nuisance type injuries with no residual effects and little damage done
b. Slight: Minimal residual, little pain, quick recoveries. Moderate sprains of ankles and wrists, back and neck, small scars of up to about 10 stitches, simple fractures of a finger, or toe..
c. Moderate: First
non-fractures to reach the Insurance Law Threshold. 3-6 months
to heal, leave
some mild residual effects, prevented the plaintiff from
engaging in work
during the healing process, but not after. Confirmed
Radiculapothy, Simple fracture,
Knee or Shoulder tear tending to go for more if
arthroscopic surgery has been
d. Serious: 3-6 months to heal, but leave pronounced residual effects, more painful or dangerous, or group of moderate injuries was inflicted simultaneously. Frequently some surgery. Begin to see moderate economic impacts but not a long term diminution earning ability or significant life style changes. Compound or multiple fractures tend to fall into this category, as do ankle, hip, elbow or serious hand fractures, provided that the injuries heal without significant loss of use of the limb or joint. Facial scarring which could first be characterized as “disfiguring” begins in this category. Confirmed Herniated Disks with radiculapothy an unbiased Dr. confirms. A ruptured cruciate ligament with reconstructed surgery Carpal Tunnel or Ulnar nerve release operation.
e. Very Serious: Substantial residuals distinguish these injuries.. Usually there was a significant hospital stay and a serious trauma to begin with, then a long healing period. Marked orthopedic limitations, continuing significant pain, diminution of earning capacity, surgery associated with herniations, significant neurological residuals, limp or significant loss of motion from poorly healed fracture. Knee or hip replacement surgeries may fall into this range.
f. Severe: Severe injuries significant and debilitating residuals. Serious impact on a plaintiff’s daily life. Often have a serious economic component. If the tri-maleoar ankle fracture does not heal and a fusion surgery is undertaken, it is a severe injury. If the hip injury malheals or a leg is significantly shortened and a plaintiff now walks with a quad cane it is a severe injury. If the soft tissue injuries result in surgery and now, legitimately, an iron worker or carpenter is unable to ply his trade being reduced to unskilled light labor it can be a severe injury. Facial scarring or burns which are disfiguring are severe injuries. Loss of an eye or significant loss of vision is a severe injury.
Grave injuries remove from the plaintiff his ability to
normally live his life
and/or continue his employment. Paraplegia is a grave injury.
Blindness is a
grave injury. Monstrous burns are grave injuries. Amputations
of limbs are
grave injuries. The value of these cases usually has a large
and a future medical component.
h. Catastrophic: Catastrophic injuries remove from the plaintiff his ability to enjoy those pleasures which even the gravely handicapped can enjoy. The most common catastrophic injuries quadriplegia and brain damage.
V. SETTLEMENT STRATEGIES
1.A complicated issue generally beyond the scope of this discussion, however:
2. All of the above can be effective in controlling the Risk otherwise endemic in a jury.
VI FOLLOWING THROUGH ON THE STRATEGIES.
1. Crucial that the Assigned Attorney adhere to these strategies as closely as possible
2. It is a good idea at the end of the TSC to write down go over a written summay.
3. Claim/Client should expect these decisions to be followed.
4. Under no circumstances can an attorney ever agree to pay more money to settle a case, or agree to settle a case on different terms from those that have been expressly authorized.
5. Any oral authority granted by the claim/client should be confirmed in writing by the attorney.
VII WAIVING LIABILITY
1. Rarely done
2. Feasible is liability picture is inflammatory as well as practically indefensible. e.g. DWI conviction
3. Can be used as a bargaining chip to cap potential damages at the policy limit,
4. Requires consent of the Claims Professional and client. Managing Attorney or Partner need notification.
5. Bring Managing Attorney or Partner into the loop in case of a disagreement.
VIII BAD NEWS
Unfortunately and in spite of all quality control efforts, this is often the stage where it is realized that due to some mishandling of the case, or to some death or absence of a witness, it will not be possible to raise a defense to liability or damages that would otherwise be counted on. In such a situation, the Managing attorney or Partner should be apprised immediately.
IX AN OVERVIEW OF TRIAL PREPARATION
1. The actual business of trial preparation typically consists of the attorney working alone or in conjunction with an in-house or outside vendor “trial prep man”.
4. Under no circumstance may the Attorney divorce himself from the Trial Preparation process.
a. Legal judgment and opinion whether in fact the case is ready to be tried,
b. Attorney's theory of his case will often lead him to desire particulars of investigations
c. Moreover, it is necessary that trial preparations fees be controlled..
5. Subpoenas or 3122 Notices. Goal to have available all the records your IME Doctor used.
6. Similarly it is typical to subpoena documents discussed in the following checklist.
7. Check on the availability of your doctors, clients and any other necessary witnesses.
8. A fundamental difference in Civil practice from Criminal practice.
9. If subpoenas rejected may wish to move by Order to Show Cause
10. Some subpoenaed materials must first be seen by the trial judge, e.g. criminal records.
11. Subpoena responses can be seen in E-Law
12. Can also see whether the Plaintiff has subpoenaed any records. If he hasn’t , it is typically a sign that he intends to settle the case instead of trying it, or that he is really not prepared for an imminent trial.
13. The attorney should be cautious, however, in assuming that just because a subpoena response is logged in that records actually responsive to his demand have been provided.
X FRESH HIPPA AUTHORIZATIONS AND 3122 PRACTICES.
1.In every case where medical records are sought “Fresh” HIPPA authorizations have to be provided.
a. As soon as the case is certified for trial it is advisable to begin haranguing the Plaintiff
b. Including such an obligation in a Certification Order is a good practice.
c. Move to strike his answer if he continues to ignore you. DO NOT let the trial date sneak up on you.
2. 3122A CPLR provides a mechanism that can remove imprecision
a. Allow documents to actually be produced directly from the attorneys file.
b. 3122A “Certification essentially sets forth Business Record Hearsay exception.
c. A Notice WITH the records is the best practice.
3. Stipulations or Summary Jury trials can shortcut Document Production practices.
4. Use Notices to Admit for what they are intended.
XI REALLY BAD NEWS
1. One note of caution the attorney must remember, it will occasionally occur that an investigation begins to reveal circumstances which make it look like your client may be in collusion with the Plaintiff .
2. Perhaps the most difficult situation a trial attorney will encounter. Precisely whether, how and to what extent this issue can be disclosed to your Claim Partner or the Courts requires a thorough and considered inquiry.
XII TRIAL PREPARATION CHECKLIST
THE LATEST TIME TO VERIFY WITNESS AVAILABILITY IS WHEN YOU HAVE KNOWLEDGE OF WHAT YOUR JURY SELECTION DATE WILL BE.
ONCE YOU BEGIN SELECTING A JURY YOU ARE USUALLY LOCKED IN TO PROCEEDING DIRECTLY OR IMMINENTLY TO TRIAL. EFFORTS TO POSTPONE A TRIAL WILL BE POORLY RECEIVED AT BEST.
A) CLIENTS – First phone call should go to the clients. Under no circumstance should you be committing to a trial date unless you know their availability. Clients die, get sick, go on vacations, go overseas, join the military, go to college, move out of state and otherwise become unavailable for periods of time. MAKE SURE THEY KNOW THEY MAY RECEIVE A SUBPOENA TO APPEAR FROM PLAINTIFF! THIS CAN BE UNSETTLING TO THEM.
B) NECESSARY WITNESSES – If your case hinges on a necessary fact witness, an eye witness to an accident, a witness who will lay the foundation for a document or a witness who will lay the foundation for some investigative piece (surveillance tapes for instance) these should be your Second Phone Calls. Do you intend to call a police officer regarding accident reports? A nurse regarding admission notes? An ambulance driver? A clerk or record keeper? Check their availability.
C) DAMAGES WITNESSES – Make sure your Doctors are available before you commit to starting jury selection. Doctors tend to take loads of vacation and generally do so right in the middle of trial season since they can’t be bothered with the crowds at Easter, Christmas, August, etc.
THIS MEANS HAVING COMPLIED WITH THE REQUISITES NECESSARY TO ADMIT KEY PIECES OF EVIDENCE.
AS A PRECOURSOR, READ THE PRELIMINARY CONFERENCE ORDER, AND ANY OTHER DISCOVERY ORDERS, SEE WHAT THEY HAVE CALLED FOR AND COMPARE THAT TO WHAT YOU INTEND TO USE AND WHAT HAS BEEN EXCHANGED
Most commonly these questions involve.
A) IME’S EXCHANGED – Make sure that you have proof that your IME reports have been exchanged. If you have no proof, exchange them now. Don’t forget about Radiology Exams. These are usually provided as part of a Expert Witness exchange, so see the details on this topic below.
B) FILMS NOTICED – If you intend to rely on a Radiologist’s reading of a X-Ray, MRI or CT Scan you will want him to do it from a film in evidence. There’s basically three was to do it.
1) If you have copies of the films, you can exchange a CPLR 4532 NOTICE Which is a notice summarizing and notarizing what the person who would ordinarily authenticate the film would testify to.
2) If they are films plaintiff absolutely has to have to make out his case, and he has given you a CPLR 4532 notice, you may be able to rely on plaintiff introducing the films on his case in chief.
3) Backing up option 2, you can subpoena the films to Court and plan on calling the person who took the films, or a record keeper from their office to lay a foundation for their admission.
4) Case law says you CANNOT rely on a 3126 Notice for Films.
C) EXPERT WITNESSES NOTICED – Make sure if you are using an expert that a 3101(d) notice has been prepared and exchanged. READ THE EXCHANGE – CHECK THAT:
1) The substance of what you expect the expert to testify to is indicated
2) The matters he is basing his testimony on are indicated
3) His Curriculum Vitae is attached (A COMMON OVERSIGHT!)
4) It has been served correctly, to all parties, not just one plaintiff’s counsel on a related matter.
D) LAY WITNESSES NOTICED – It is Usual for a Preliminary Conference Order to demand that Fact of Notice Witnesses be Noticed. A COMMON OVERSIGHT IS TO FAIL TO DO THIS. If you have a Witness you intend to use besides your client or the officer indicated on the police report, the witness should be identified in your Discovery Response. If he isn’t, notice him now.
E) PHOTOGRAPHS AND OTHER DOCUMENTS – It is expected that Photographs you intend to use will be exchanged. They are Usually called for in the preliminary Conference Order or Discovery Demands. The same can go for many other types of documents, contracts, work orders, invoices, repair documents, etc. If you intend to rely on them, you should make sure that they have been exchanged. You may wish to serve a Notice to Admit to ease the introduction of Contracts or other documents that lend themselves to this type of device.
3) CHECKING THE PLEADINGS
EXAMINE YOUR ANSWER TO MAKE SURE THAT IT IS ADEQUATE AND GIVES YOU THE PLATFORM YOU NEED TO DEFEND YOUR CASE.
A) DID YOU DENY WHAT NEEDED TO BE DENIED?
One of the few things plaintiff has to hand the judge when the case starts is a copy of the
Cases have been seen where negligence has been admitted. That’s extreme but it happens. Are your pleadings consistent with the positions you are taking. Did you admit ownership? Contact between vehicles? A Serious Injury? All those D’s and DKI’s and D except Admit add up.
C) AFFIRMATIVE DEFENSES – Make sure the defenses you intend to rely on are there in your answer. A COMMON OVERSIGHT is to assume they are, when, to your detriment, they aren’t.
At a minimum you should see
1) Comparative Negligence
2) Collateral Source
3) Failure to Mitigate Damages
4) Threshold in an Auto Accident
5) Article 16 in non-auto cases.
(NOTE: While usually plaintiff’s do not press for a bill of particulars of affirmative defenses, where Article 16 is legitimately invoked you must identify who you believe plaintiff could have, but did not implead).
In addition you will want to see any special defenses that are associated with the particulars of your case.
D) CROSS CLAIMS OR COUNTERCLAIMS – Have you interposed cross claims or counterclaims?
Did they include the appropriate causes of action.
Included should be a claim of Contribution for Ordinary Negligence, Common Law Indemnification for situations where we have no actual control over the processes in question and Contractual Indemnification where the parties have entered into a Contract.
E) PROOF OF SERVICE – A COMMON OVERSIGHT is for Cross Claims not to have been served, ususally because co-defendants had no attorneys at the time we interposed our answers.
F) TAKING DEFAULTS – A COMMON OVERSIGHT is for no default to have been taken when we interposed a Counterclaim. A default needs to be taken in a year, or the matter may be deemed dismissed or abandoned. This EQUALLY TRUE OF THIRD PARTY ACTIONS. A COMMON OVERSIGHT IS for the action to be served but Answers not obtained from all (or rarely, any) of the Defendants.
G) THIRD PARTY ACTIONS – Where we bring in parties pursuant to a Third Party Action, the same processes as those outlined above need to be reviewed in reverse. How have they answered to our claims? What affirmative defenses have been plead?
H) CHECKING PLAINTIFF’S COMPLAINT –Check plaintiff’s complaint as to his causes of action. Make sure there are no surprises and in particular that there are no claims for punitive or quasi punitive damages. Check the ad danum amount. Are there any co-defendants who have never appeared?
4) DEPOSITION TRANSCRIPTS
VERY FEW TRIALS TAKE PLACE WITHOUT SOME USE OF DEPOSITION TRANSCRIPTS. CHECK THE FOLLOWING
A) DO YOU HAVE ALL THE TRANSCRIPTS? Do you have transcripts of the plaintiff, the wife and husband? Co–defendants? Our Clients? What about non-party deposition transcripts? And be careful where parties have been deposed more than once. There may be multiple transcripts. IF THERE ARE ERATA SHEETS YOU WANT THOSE AS WELL. TRY TO DIFFERENTIATE BETWEEN EXECUTED ORIGINALS RETURNED TO US WITH OR WITHOUT ERATA SHEETS AND COPIES IN OUR FILES THAT HAVE NEVER BEEN SENT FOR EXECUTION.
B) EXECUTED AND EXCHANGED. When you wish to use a transcript of an adversary, the CPLR requires that they have either executed the transcript or have had an opportunity to execute it. If you have an executed Transcript, that is signed and notarized and possibly with an Erata sheet, great. If not, you will at least NEED THE LETTER SHOWING WE SENT IT TO THEM AT LEAST 30 DAYS PRIOR TO TRIAL AND GAVE THEM A CHANCE TO EXECUTE IT.
C) COPIES – YOU WILL BE EXPECTED TO HAND THE JUDGE A COPY OF A TRANSCRIPT FOR HIS USE IF YOU ARE GOING TO USE IT TO CROSS EXAMINE A WITNESS OR ELICIT DIRECT PROOF.
5) ORDERS, SITPULATIONS, MOTIONS AND DECISIONS
A LOT OF NASTY SURPRISES CAN BE SET UP BY DECISIONS HANDED DOWN ON MOTIONS DECIDED YEARS AND YEARS AGO OR CASUALLY AGREED TO IN A TUMULTUOUS CONFERENCE PART.
A) CHECK THE PRELIMARY CONFERENCE ORDER AND ANY FOLLOW UP CONFERENCE ORDERS for its terms, it may call for Documents to be produced that are outstanding, for Depositions of certain parties or for compliance with certain procedures by a deadline. For instance, while the CPLR does not describe a deadline for 3101(d) responses, the PC order might.
B) ANY SELF EXECUTING ORDERS? In addition what looks like a Preliminary Conference order might be an order from a follow up conference that is self executing and could preclude testimony of your client if he has not been produced for a deposition by a certain date, or even more drastically, strike your answer. This self executing and preclude/strike remedy can attend to other discovery – documents, authorizations, etc. Moreover, preclusion orders can follow on motion practice.
C) BILL OF PARTICULARS OF AFFIRMATIVE DEFENSES Not uncommonly a Preclusion order could be entered on your failure to provide a Bill of Particulars of Affirmative Defenses. That can put you in a real bind if Comparative Negligence is knocked out.
D) OTHER MOTION DECISIONS can ditch causes of action, can grant summary judgment on certain causes (notably indemnification between defendants) and otherwise have momentous impact on the trial of a case. In general any motion extant in the file should be matched up with its decision.
E) STIPULATIONS: Have any written stipulations been agreed to or entered into? What are there terms?
6) SUBPOENAED RECORDS
CUSTOMARILY SUBPOENAS WILL BE PREPARED AND SERVED TO SUMMON RECORDS TO THE SUBPOENAED RECORD ROOM AND WITNESSES TO COURT. IN THE ALTERNATIVE CERTIFICATION AND NOTICE PRACTICES PURSUANT TO 3126A MAY BE EMPLOYED TO LAY THE FOUNDATION FOR RECORD ADMISSIONS.
1) EMS or AMBULANCE RECORDS
2) HOSPITAL ADMISSION RECORDS
3) PERSONAL PHYSICIAN
4) TREATING PHYSICIANS
5) DIAGNOSTIC TESTING: eg. MRI’S CT SCANS X-RAYS
6) PHYSICAL THERAPY/CHIROPRACTIC/ ALTERNATE THERAPIES (eg. ACUPUNTURE)
7) PHARMACY RECORDS (CAN BE CRITICAL TO SHOW CASE IS BEING DRIVEN BY A DRUG ADDICTION)
8) EXAMINING PHYSICIANS (THOSE WHO ONLY SAW ONCE OR TWICE TO DO A REPORT)
9) DURABLE MEDICAL EQUIPMENT PROVIDERS
10) NO FAULT FILE
11) PERSONAL HEALTH CARE INSURER (MAY BE CRUCIAL ON ISSUE OF COLLATERAL SOURCE)
1) POLICE ACCIDENT REPORT AND OTHER POLICE RECORDS.
2) MV-104 REPORTS
3) ACCIDENT REPORTS PREPARED IN THE COURSE OF BUSINESS
C) ECONOMIC INDICATORS
1) SUBPOENAS FOR TAX RETURNS SHOULD BE SERVED PERSONALLY ON THE PLAINTIFF, TRYING TO GET THESE FROM THE IRS IS USUALLY FRUITLESS. IF PLAINTIFF DOES NOT COMPLY HE WILL BE SUBJECT TO A MISSING DOCUMENT CHARGE.
2) WORKERS COMPENSATION RECORDS – A GREAT SOURCE OF MEDICAL INFORMATION AND PAST INJURY PARTICULARS AS WELL.
3) SOCIAL SECURITY DISABILITY RECORDS – SINCE THIS IS A FEDERAL AGENCY IT CAN BE IMPOSSIBLE TO GET THESE.
4) EMPLOYMENT RECORDS
5) DIVORCE RECORDS – ARE CONFIDENTIAL AND REQUIRE A COURT ORDER
6) PROBATE RECORDS
7) UNION RECORDS
D) OTHER CONSIDERATIONS
1) SOME SHARP PRACTITIONERS WILL ATTEMPT TO SUBPOENA RECORDS SHOWING A MONEY CONNECTION BETWEEN AN ‘EXPERT’ AND THE HIRING ATTORNEY. YOUR DR’S MAY RECEIVE SUBPOENA’S ASKING THEM TO PROVIDE ALL SORTS OF ACCOUNTING INFORMATION AND PARTICULARS ON HOW MANY CASES THEY’VE DONE FOR DEFENDANTS OR YOU IN THE PAST. THESE SHOULD BE MET WITH A MOTION TO QUASH
2) BLOCK MAPS, TAX MAPS, STREET OR OTHER MAPS TENDING TO RELATE TO OWNERSHIP AND PLACE OF OCCURRENCE.
3) WEATHER REPORTS – NOT TECHNICALLY SUBPOENAED, MUST BE ORDERED AND PURCHASED CERTIFIED FOR ADMISSION AND WILL REQUIRE A LEAD TIME TO ACQUIRE.
4) SCHOOL RECORDS (INJURED PLAINTIFF STILL IN GYM? GETTING GOOD GRADES?)
5) CRIMINAL RECORDS – WHILE THESE CANNOT BE TECHNICALLY SUBPOENAED IN CERTAIN CASES AN INQUIRY SHOULD BE DIRECTED. A DETECTIVE CAN EASILY CHECK THE SYSTEM OF SURROUNDING COUNTIES. MOREOVER, NEW YORK IS AN “OPEN RECORD” STATE. A RECORD OF CONVICTIONS CAN BE OBTAINED WITH A NAME AND DATE OF BIRTH BY AN INQUIRY DIRECTED TO THE DEPARTMENT OF CORRECTIONS.
6) HOSTPITAL CHECK – AN INQUIRY CAN BE MADE INTO ADMISSIONS INTO SURROUNDING HOSPITALS
7) CIB – A CHECK OF A DATABASE THAT SHOWS PRIOR OR SUBSEQUENT ACCIDENTS BY PERSONS WITH SAME OR SIMILAR NAMES.