Civ Pro 101: “No Trial By Ambush”

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It’s 10:00pm the night before my first binding ADR. I am extremely nervous and anxious, but everything is coming together. My major points are outlined in detail, and with a little luck a defense verdict is attenable. While my client has exposure, there is a high-low agreement in place so our damage is capped. Who wants to lose small when they can win big? I open our electronic filing system to print a few pictures to show the minor damage to plaintiff’s vehicle as a result of the accident. And then I see, “Plaintiff’s Medical Records.” But wait, this is new. I open the document and begin to browse. Right away, I spot records from 2012, but we’ve had an ADR agreement in place since 2010, what are these new records? I continue to peruse. I see a three-day hospital stay in 2012, and then the words that forever changed my night, “lumbar laminectomy surgery in 2014.” My mouth dropped. The entire case has changed.

We have an Independent Medical Examination (IME) from 2009. There was an initial delay in agreeing on the arbitrator, followed by plaintiff counsel’s numerous continuance requests, but no mention of any additional treatment or surgery. This was Civ Pro Ambush 101, and I was in the middle of a full onslaught attack.

It’s now 11:00pm. What do I do?!?! The rules of Civil Procedure state very clearly, “no trial by ambush.” I immediately open the ADR agreement to review the parameters. With regard to medical evidence, “counsel agrees to provide notice at least fifteen (15) days before the case is submitted to the appointed Trier of Fact.” The additional records violate the agreement and I can object to keep them out, but will that be enough?

The next morning, while discussing matters of housekeeping at the beginning of the arbitration, I rigorously address the last minute ambush of over 500 pages of new medical records. The arbitrator’s mien let me know right away that he was just as upset by opposing counsel’s stunt. Nonetheless, he wanted the hearing to take place – quite frankly – we all did. This case sat around for years, and it was now biting us in the rear. The arbitrator asked if I would agree to move forward with the arbitration and have 45 days for a doctor to review the additional medical records. This would prevent any additional delay, while reserving an opportunity to for the defense to rebut the additional medical records. Aware of the inherit risk, I agreed and requested deference on the cross examination of any new records or testimony. Because of the politics involved in selecting an arbitrator I was doubtful that the records would be kept out altogether, but the ruling certainly helped.

Although, the plaintiff was permitted to introduce new records and testimony, the ruling shifted the standard argument hierarchy and gave the defense the last word. In addition, I was able to impeach the plaintiff on a number of issues and highlight serious credibility concerns. There’s more to the ongoing story, but I’ll stop here and be sure to post an update on the arbitrator’s decision. For now, the story continues as I move forward and secure a doctor to review the additional medical records.

In closing, here are a few tips for dealing with a severely delayed case. Always request supplemental interrogatories and updated medical records. Plaintiff’s counsel has a duty to advise you of plaintiff’s treatment, but do not let them determine the timing. The request of supplemental interrogatories and production of documents will start the clock. Depending upon the answers to the additional discovery you may want to re-depose the plaintiff or schedule an additional IME. This decision must be made case-by-case.

Contrary to some opinions, a case sitting for an extended period of time is not good for the defense. It’s literally a time bomb waiting to explode. Implement these small tips into your practice and don’t get caught holding it in the end.

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