The statistics that support incorporating the use of technology at trial are never-ending. In the United States people spend an average of 7.4 hrs (444 mins) each day looking at a screen. Most Americans cannot go more than 10 mins without checking their phone, but in the beginning of a trial jurors lose this privilege. They are selected to participate in a process that most do not enjoy and to make matters worse they’re prohibited from using any personal electronic devices. The use of technology at trial gives the jury a screen to satisfy their urge, if nothing else.
Years ago defense attorneys avoided using technology at trial for fear that it may lead to the “Big Screen” effect. This is where a jury observes defense counsel using technology and concludes that the defendant must be wealthy because they can afford such services. The thought is that, assuming liability is proven, this could hurt the defendant when the jury is deciding damages. In 2017 this is not the case. The CSI effect is real. Americans are accustomed to receiving and experiencing information electronically, not in print or poster boards. Presenting your case in a manner that is consistent with how jurors expect to receive it renders your argument that much easier to digest.
After 72 hours a juror remembers 10% of what they’ve heard, 20% of what they’ve seen, and 65% of what they’ve seen and heard. If you want the jury to remember your arguments you must present it to them in multiple formats.
The Pennsylvania Supreme Court recently held that “ill-will” or “self-interest” is not necessary for a policyholder to successfully sue an insurer for bad faith.
Justice Max Baer writes in Rancosky v. Washington Natural, “Additionally, we hold that proof of an insurance company’s motive of self-interest or ill-will is not a prerequisite to prevailing in a bad faith claim under Section 8371, as argued by Appellant. While such evidence is probative of the second Terletsky prong, we hold that evidence of the insurer’s knowledge or recklessness as to its lack of a reasonable basis in denying policy benefits is sufficient.”
The two prong test developed in the 1994 Superior Court opinion of Terletsky v. Prudential remains. A party suing an insurer must prove “(1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis.”
For now, the precise effect of Rancosky is yet to be seen; however, what we know is that more plaintiff’s claims will survive motions for summary judgment. A significant win for the plaintiff’s bar, not so much for the defense.
The law’s stubbornness to bend with trends is not a flaw, but by design. It prevents unnecessary changes and ensures that an adjustment is truly needed. Consequently, the law often struggles to keep up with technology. For an example, look no further than Instagram. The application has become a major platform for advertising and copied content. This article by Scott Alan Burroughs highlights the law’s struggle to adapt…
See, Doing It For The Gram.
“We are stuck with technology when what we really want is just stuff that works,” said best by Douglas Adams. Today time is the most precious commodity not only for young attorneys but all young professionals. So, does digital dictation really work? A recent article posted on Attorney at Work outlines the recent improvements in digital transcription and what to realistically expect.
Today you would be hard-pressed to find a process that has not been impacted by technology. Below is an excellent article on the status of evolving technology and communication as it relates to the service of process.
The legal profession is not known for being ahead of the curve when it comes to utilizing new technology. In fact, the profession is more known to gravitate toward tradition over innovation. However, sometimes new technological/cultural norms force themselves upon the profession, and the courts are forced to deal with the issues. One of the issues courts are facing more and more is the issue of service of process via email or social media. While the cases below, one that permits service via email and social media and one that does not, are from outside of Pennsylvania, they illustrate an issue that will face all litigators in the near future; the tension created by trying to reconcile constitutional concerns pertaining to service of process and evolving technology/communication.
As reported in the Bar Reporter, seven candidates were elected to three-year terms to the Philadelphia Bar Association’s Young Lawyers Division Executive Committee and will begin serving their terms on Jan. 1. They are:
- Robert H. Bender Jr.
- Eli H. Klein
- Negar M. Kordestani
- Hillary N. Lad
- Catelyn McDonough
- Stephanie Stecklair
- Andre J. Webb
Thank you for the opportunity to serve.
While there is no substitution for visiting the scene of an accident, there are instances where the collection of information and data must begin quickly. Drone mapping is an evolving technology that is assisting numerous insurance companies in preserving key details that were once lost as a result of delay. This article explains the latest technology and its recent advancements.
Drone mapping provides insurance companies with an easy, fast and accurate method of documenting a scene and preserving key details while also letting the process of clean-up and reconstruction begin as quickly as possible. Recently, Dronotec, a start-up company specializing in drone inspection for insurance companies conducted a case study to determine just how much money this drone mapping was saving insurance companies. Dronotec’s founder, Emilien Rose, worked as a loss assessor in France and Australia for 10 years and conducted assessments of about 8,000 claims. Rose believes that Dronetec and drone mapping can really save time and money for insurers.
For example, recently a fire in France consumed 5 acres of a vacation destination on the coast. Once the insurance company came in to assess the damages, they realized that the sheer size of the site posed quite a challenge. Moreover, so much of the property was damaged by the fire, inspectors could not enter the properties or inspect the roofs without the threat of personal injury. A plane attempted to capture photos but many of the photos were not clear or sharp enough to use. However, the loss adjuster recommend a drone to do the mapping of the scene. In about 10 minutes, the drone collected more than 300 geo-tagged photos flying about 180 feet over the property. The images were uploaded to a drone mapping program, and three hours later a 2-D map and 3-D model of the property and the damages were available. The high degree of accuracy of not only the photos but the mapping improved the likelihood of identifying the cause of the accident exponentially. And the insurance company’s team members were able to collaborate and review the mapping in one cloud-based space. In this one case, the use of drone mapping saved this French insurance company about €99,985,000 (or about $110,600,000).
The ability to quickly process claims is very helpful to insurance companies with large scale disasters that have many claims filed related to the same incident.
An article recently featured in The Legal Intelligencer highlights a number of important investigative steps for litigating personal injury matters. The authors recap instances where these minor but important moves made the difference in their case.
In your last 20 motor vehicle collision cases, how many times have you visited the scene of the crash or sought the drivers’ phone records? Once, twice … zero times?
These investigative steps should be second nature and common sense to the trial lawyer. Yet, many lawyers rarely visit the accident scene or pursue the driver’s phone records. Excuses are easy to make. Liability seems clear. There is no time to visit the scene. You can view the scene on Google Street View. The area is dangerous. Phone records are difficult to obtain without litigation. The case will settle quickly. Certainly, some cases are more clear than others, and the decision to forego these investigative steps can be justified. However, without a scene inspection or phone-record review, you will not know what you are missing. Or, even worse, what you are missing may come back to haunt you at trial.
A few months back we discussed the importance of honesty and credibility. In line with that theme, Brendan Kenny of The Lawyerist recently wrote an article titled, “Why Hyperbole Will Destroy Your Case and Understatement Will Save It.” The article goes further in expressing the significance of maintaining your credibility as an attorney. It includes examples with story lines and excerpts of video depositions. The article even goes one step further and discusses strategies for handling attorneys that cross blur the line. It is a truly intriguing article that I encourage everyone to read.
Here are a few excerpts:
“Playing loose with the facts invites your audience to question your sincerity and suspect that you are trying to manipulate them. They may retaliate by rejecting your client. In short: avoid even the appearance of insincerity.”
“If you distort or even fudge, you’ll be found out. And if you’re found out, you’ve lost everything there is to lose. You’ve lost credibility”
“If you exaggerate the strength of your client’s case in your mind, you will naturally do the same in your written and oral advocacy. Because your tone doesn’t fit the case that the judge and the jury are learning about, they will soon start doubting your honesty, sincerity, and competence.”
Read the article in its entirety at, Why Hyperbole Will Destroy Your Case and Understatement Will Save It.
Today, more and more limited tort cases are litigated. Their value hinges upon whether the plaintiff can prove a serious impairment of a body function, otherwise known as a breach of limited tort. While it remains unclear exactly what constitutes a breach, strategies amongst the plaintiff and defendant bars continue to develop. I recently came across this article in the Legal Intelligencer written by Marc Simon detailing their strategy for approaching limited tort cases. It’s a perspective worth reading for both plaintiff and defense attorneys.
Four (4) Tips for Winning the Poker Game of Limited Tort Litigation
, Simon & Simon P.C.
Wednesday, April 6, 2014
In the world of personal injury litigation, everything we do is a gamble. Every time we sign up a new client, file a lawsuit, pay our experts, and walk into that courtroom to pick a jury we, and our clients, are betting on 8 or 12 people sitting in the jury box. We’re risking our time, our staff’s time and our case costs, that the jury will come back with a favorable award. In that regard, any personal injury litigation is a game of chance. And like most games of chance, the odds are tipped slightly in the house’s (the insurance companies’) favor…especially in the limited tort context.
That being said, you can only win if you’re willing to put your chips in the middle of the table. When an adjustor asks “why does your client pierce limited tort?” he is really asking if you’re willing to go all in for your client. To take on the big stacked insurance carriers in the poker game of limited tort litigation, you must be willing to bet it all. But before anteing up, remember these four (4) tips to taking down the house: