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.
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:
Reputation and credibility are everything. I no longer tweet but one thing I enjoyed was that it forced me to express my thoughts in 140 characters or less. Forcing oneself to truncate his or her words and focus only on those necessary is an invaluable practice, especially for attorneys. According to the Statistic Brain Research Institute, a human’s attention span is now 8.25 seconds; thats less than a goldfish. Subsequently, the quicker that you deliver your argument the higher the probability that it will resonate.
Continuing that thought – while hoping I still have your attention – how you utilize one’s time presenting arguments will affect your credibility and reputation. Do not tatter your credibility with arguments that are illogical or implausible.
As a civil defense attorney, occasionally we are dealt a bad hand. A set of circumstances with no means of lending a clear path for your client’s release. On the day of reckoning, whether arbitration, ADR, or trial, everyone knows your plight. In spite of those circumstances, we must represent our client and their best interests vigorously. In unique circumstances I believe this is best achieved by conceding some areas, only to win big in others. To do so, we must maintain our credibility, as well as value the trier’s attention span, by presenting only the most logical and suitable arguments. Pointing out every possible area of contention is not effective nor necessary. Select your best arguments, the ones that you believe will stick.
So now you are thinking, “OK, sounds good, but where is the proof.” For some time I wondered the same. However, I recently came across an article that detailed this very approach. The defense was faced with a daunting task and a good liabity argument was essentially non-existent. Injuries appreared to be related, but the parties did not agree on the extent of such injuries. The defense obtained solid evidence pertaining to damages going at the heart of the plaintiff’s credibility. However, it was going to be critical for the defense not to diminish their credibility arguing liability where their client was clearly at fault. Read here to see the results, Admitted Liability/Reduced Damages.
In short, your credibility is everything. When placed in a tough position with little to work with, face those limitations head on. Admit your weak areas. This will go far in building your credibility and using it to persuade the trier on your more favorable arguments. Our arbitration panels, juries, and judges are human-beings. Arguing liability where the facts are clear that your client is at fault will undoubtedly affect your credibility. In fact, it may lead the trier to feel that you are unreasonable or out of touch with reality; and as a result could lead them to not value your other arguments. Instead, consider conceding liability, accepting responsibility on behalf of your client, and move on to argue damages pointing out key areas where you disagree with the extent of the injuries. Not only is this where you will score points, but where the trier of fact will value your argument, testimony, and candor.
I recently came across this article and thought it was an excellent overview of typography tips for young attorneys. Quite often, we are consumed with the substance of our writings and, while important, the presentation can be equally as essential. The excerpt below is from 10 Takeaways from Typography for Lawyers written by Matthew Salzwedel. I found number 1 of particular interest, as I previously posted an article on the same topic, Are you Team One Space or Two? Enjoy!
1. Use Only One Space Between Sentences
Butterick says you have no choice when deciding how many spaces to include after a sentence-ending period (indeed, after any punctuation mark): one space. He cites multiple typography authorities, including the Chicago Manual of Style, Garner’s The Redbook: A Manual on Legal Style (Section 4.12), and the 7th Circuit’s “Requirements and Suggestions for Typography in Briefs and Other Papers” (which Sam reviewed in “Legal Writing: Make Your Writing Easier to Read“). True, other writers have objected to the historical foundation of the one-space rule, but I’ve found no good authority (including the local rules of the states and many federal courts to which I’m admitted) that you should include two spaces after a sentence-ending period in court documents.
2. Never Underline
“Now that we don’t use typewriters, there’s no need to underline.”
Butterick also advises never to underline text for emphasis or otherwise. Like two spaces after a sentence-ending period, underlining is a holdover from the typewriter era, which, as many have forgotten (or in my case never knew) didn’t allow for bold or italics. On a typewriter, underlining was the only way to emphasize text. Now that we don’t use typewriters, there’s no need to underline.
In my former litigation practice, I occasionally underlined text to emphasize particular words because The Bluebook: A Uniform System of Citation requires case names to be italicized and I wanted to distinguish between the two. My view at that time was that underlining allowed to reader to distinguish easily between italicized case names and the text I wanted to emphasize. But I erred in doing so. Given how ugly and blunt underlining can be, start using italics and bold to emphasize any text that deserves to stand out from the rest.
Pennsylvania law is well settled on the relevancy of surveillance videos and them being subject to discovery. What is not so clear is when the surveillance must be disclosed or produced. It is important to note that both the disclosing and producing of the surveillance are two separate events. The defense does not have to produce surveillance videos at the same time that they disclose their existence; thus, the question becomes when must the two events take place?
In addressing this matter, Pennsylvania Court’s strive to strike a balance. As stated in the PA Surveillance Compendium, “Pennsylvania Courts have recognized the competing interests at play when it comes to the issue of video surveillance—for Plaintiffs, it is securing a trial free from surprise, and for Defendants, it is the potential to expose fraud or exaggerated claims of injury.”
“Under the law today, you do not need to disclose the existence of surveillance footage until (1) the Plaintiff requests video surveillance in discovery, and (2) the deposition of the surveilled individual is taken. Morganti v. Ace Tire & Parts, Inc., 70 Pa. D. & C. 4th 1 (Common Pleas 2004) (Wettick, J.). You may wait until after Plaintiff has been deposed to disclose the existence of the surveillance video to Plaintiff. This is true even if Plaintiff propounds discovery upon Defendant months before his or her deposition is taken and specifically requests Defendant to identify and produce any and all surveillance videos of Plaintiff. This Rule preserves the impeachment value of the surveillance, while giving the Plaintiff time to test the integrity of the impeachment evidence.” Id.
In other words, prior to the plaintiff’s deposition, the defense may hold the surveillance in an attempt to secure contradictory testimony. Afterwards, the defense must produce the surveillance in a timely matter.
Other great related sources of information:
A plaintiff’s attorney is not allowed to be present during neuropsychological testing of his or her client, a Lebanon County Court of Common Pleas judge has ruled.
Addressing an issue that has apparently gone largely untouched by appellate court review, Judge Bradford H. Charles based his decision mostly on the defendant’s doctor’s ethical objections and the fact that the plaintiff’s attorney had not been present when the plaintiff’s doctor examined the plaintiff.
Although the plaintiff had argued that the Pennsylvania Rules of Civil Procedure give plaintiffs the right to have counsel present during independent medical examinations, Charles looked to a 2013 Lackawanna County Court of Common Pleas decision, and determined that the attorney could not be present for the standardized testing portion of the exam.
“Permitting a third-party observer to be present during [the defendant’s doctor]’s examination would create an injustice that we do not believe was contemplated by a global evaluation of Pennsylvania’s discovery rules,” Charles said.
See: The Legal Intelligencer’s, Plaintiff’s Lawyer Barred From Defense’s Medical Exam
A motor vehicle accident occurs in Pennsylvania. The injured party has a NC driver’s license and a NC registered vehicle with a NC insurance policy, but he or she now live in PA. Are they entitled to first party benefits under Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”)? The answer is no. Here’s why…
First Party Benefits, at a minimum, provide up to $5,000.00 of medical coverage for an injured insured. At the insured’s option they may also provide, wage loss and funeral benefits. First party benefits under Pennsylvania Motor Vehicle Financial Responsibility.
Pursuant to Pugh, “there are two requirements for determining an insured’s entitlement to recover first party benefits: (1) the insured vehicle must be a vehicle of the type required to be registered, such as an automobile, and (2) the insured vehicle must actually be registered in the Commonwealth.” Since the insured vehicle in the instant case is not registered in Pennsylvania, the insurer is not obligated to pay first party benefits under MVFRL. Pugh v. Government Employees Ins. Co., 380 Pa. Super. 606, 610 (Pa. Super. Ct. 1989).
As an aside, PA law also requires one to register their vehicle within 20 days of moving to the state.