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.
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.
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:
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.
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:
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.
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