civil procedure

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.

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Plaintiff’s Lawyer Barred from Defense’s Medical Exam

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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

Five Questions Asked and Answered for Legal Technology News

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Just before Thanksgiving, Ari Kaplan Advisors conducted a flash telephone survey of 26 predominantly administrative professionals from Fortune 500 (or Global 500) companies with knowledge of, and responsibility for, their organization’s electronic discovery protocols and litigation practices. Half of the respondents were either the director of legal operations or the director of electronic discovery. They shared their views on the key trends that are likely to shape e-discovery in 2014, which should be noted before you review product offerings at LegalTech New York from Feb. 4 to 6 at the Hilton New York, 1335 Avenue of Americas, New York, N.Y.

1. Do you anticipate the volume of litigation to change significantly in 2014 and 2015 versus 2013?

Answer: Litigation volumes will increase.

Read more: Five Questions Asked and Answered for LegalTech New York